Goodman v. Cohen

8 N.Y.S. 859, 16 Daly 47, 29 N.Y. St. Rep. 716, 1890 N.Y. Misc. LEXIS 1820

Opinion

Larremore, C. J.

The contract alleged by plaintiff is certainly an unusual one. Nevertheless the jury have found by the verdict that such contract was actually entered into, and the submission of the question of fact to them by the trial judge in his charge was free from error, and eminently fair. This contract, which plaintiff succeeded in establishing, was not void under the statute of frauds. It was for a sale of the damaged goods to the defendant, he agreeing to pay the price through the different insurance companies, instead of to defendant directly. The engagement on defendant’s part, therefore, was not to answer the debt, default, or miscarriage of any of the insurance companies, but related simply to the mode of payment for the goods he had purchased. As to the portion of such sum which was to reach plaintiff through the conduit of the Citizens’ Insurance Company of Mobile, the clause of the contract providing that, in case of the insolvency of any company, its proportion should be paid directly to plaintiff, applied, and this action is maintainable for such amount, which it does not appear defendant had paid out at all. Upon plaintiff’s theory of the transaction, which the jury have accepted, the obvious consideration for the contract moving from plaintiff was the parting witli title in the merchandise in question. The verdict is not against the weight of evidence, so as to induce us to interfere with it. The sale was a peculiar one, but, on the other hand, we would not feel called upon to say that defendant was not induced to enter into such an arrangement in order to adjust and terminate a tedious negotiation. The judgment and order appealed from should be affirmed, with costs.