Horowitz v. David

145 N.Y.S. 998

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 13, 1914
• Status: Published

Opinions

LEHMAN, J.

The plaintiff alleges in his complaint that the defendant sold to the David Cohen Silk Company goods of the agreed value of $3,815.07; that the David Cohen Silk Company paid the defendant $500 on account of the said goods,, and thereafter assigned the goods and his interest in the said contract to the plaintiff; that the defendant delivered to the plaintiff all of the goods set forth, with the exception of goods of the agreed price and reasonable value of $734. The important allegations of the complaint are contained in paragraph fifth, which reads as follows:

“On the 16th day of April, 1913, this plaintiff delivered to the defendant’s representative herein his check for §3,048.02, to the order of David Cohen Silk Company, and by said David Cohen Silk Company indorsed to the defendant herein, being the balance of the purchase price of said goods, less a discount of 7 per cent., and at the same time exhibited to the defendant’s representative an assignment of the aforementioned goods, and an order, signed by the David Cohen Silk Company, to deliver same to plaintiff herein.”

The answer of the defendant denies the payment of $500 on account, denies the assignment, on information and belief, and denies the allegations of paragraph 5, except that—

“plaintiff delivered to the defendant’s representative his check for §3,048.42 to the order of David Cohen Silk Company, and by said David Cohen Silk Company indorsed to the defendant herein.”

At the trial the sole conflict of evidence was upon the point of whether the plaintiff had, on April 16th, exhibited to the defendant’s representative an assignment of the goods in question. It is not disputed that on that day the plaintiff called upon the defendant and left at his office three papers. The first paper is a letter which reads as follows:

“Messrs. B. Edmund David, 440 Fourth Avenue, City—Dear Sir: Kindly deliver to Max M. Horowitz, No. 98 Greene street, city, 197 pieces of black velvet as per your bills of April 8th and 9th, 1913, and oblige.

“Tours truly, David Cohen Silk Company.

“David Cohen, Pres.”

The second paper is a copy of an account upon the letter head of the David Cohen Silk Company, which reads as follows:

New York, April 14, 1913.

B. Edmund David, City.

To David Cohen Silk Company, Dr.

Silks and Velvets.

Terms 7%. 656 Broadway.

April 8. To merchandise...................................... 3,081 81

April 9. “ ...................................... 734 06

3,815 07

7% discount......................."........................... 267 05

3,548 02

A/c ......................................................... 500

3,048 02

The third paper is a check for $3,048.02 to the order of the David ■Cohen Silk Company, and by them indorsed to the defendant. At the time that these papers were delivered by plaintiff to the defendant’s representative, no goods were delivered to the plaintiff, and no objection was made to the account. The defendant’s representative merely stated that the matter would receive attention, and thereafter the check was cashed and the plaintiff received the goods covered by the- order, with the exception of the goods now in dispute.

Upon this testimony the trial justice ruled that evidence that the account was incorrect, in that $500 had not been paid on account, and that the additional goods had thereafter been delivered to the .plaintiff, was immaterial, and directed a verdict in favor of the plaintiff. The correctness of the judgment entered upon the direction of the verdict therefore hinges upon the question of whether the delivery of the three papers and their acceptance, under the circumstances stated, show as a matter of law notice to the defendant that the goods had been assigned to the plaintiff, so that a subsequent delivery of part of the goods to the assignor would not relieve the defendant from liability to the assignee ; and whether the acceptance of the plaintiff’s check under these circumstances, and failure to dispute the account, precludes the defendant from showing that $500 was still unpaid on the account.

The defendant now contends that the letter is merely an order for delivery, which might be considered somewhat in the nature of a shipping order, and therefore fails to give notice as a matter of law that the goods have been assigned. He claims that the account purports to be only an account between the original parties, and therefore can certainly not show an assignment, and that the plaintiff’s check, being made out to the order of the assignor, and by them indorsed, must be considered as the check of the assignor and not of the assignee, From these propositions he claims that it follows that there is at least a question of fact in the case as to whether these papers gave notice to the defendant that an assignment of the goods was made. It may well be conceded at the outset that there is force in the defendant’s argument that none of these papers is sufficient to show conclusively notice of an assignment, but the force and effect of these papers must be considered together, under the circumstances in which they were received, and, so considered, it seems to me they show beyond dispute that the defendant had notice of the assignment. The order cannot be considered as merely a shipping direction if the plaintiff at the time of the delivery of the order notified the defendant that he claimed them as his own. The account on the assignor’s letter head, delivered by the plaintiff, with a check of the plaintiff made out to the assignor and by him indorsed to the defendant, must have shown the defendant that the plaintiff was himself taking up the contract made by the defendant, and, coupled with the order to deliver the goods to the plaintiff, must have shown the defendant that the plaintiff then claimed the goods, not as the plaintiff’s agent, but as one having a personal right to the goods, and when the defendant accepted the order and check he, recognized the right of the plaintiff to these goods, and cannot now dispute the account or refuse to deliver the goods.

Judgment should therefore be affirmed, with costs.

PAGE, J., concurs.