Revere Copper & Brass, Inc. v. Gehnrich Oven Co.

254 A.D. 195, 4 N.Y.S.2d 284, 1938 N.Y. App. Div. LEXIS 6376

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 13, 1938
• Status: Published

Opinions

Cohn, J.

This action was brought by plaintiff to recover the agreed price of copper allegedly sold by it to defendant.

It appears from the evidence that defendant ordered from plaintiff certain fabricated copper which the former intended to use in manufacturing articles requested by its customer, William H. Jackson Company (hereinafter referred to as Jackson Company). According to the testimony of defendant’s president, plaintiff refused to accept the order because it was not satisfied with defendant’s credit rating but agreed to, and did, sell to Jackson Company, with whom plaintiff had had previous dealings. Plaintiff’s witnesses, on the other hand, stated that the sale was actually made by plaintiff to defendant after Jackson Company agreed to “ guarantee ” the account.

The documentary proof in the case destroys defendant’s contention and supports plaintiff’s version that defendant and not Jackson Company had purchased and agreed in the first instance to pay for the merchandise.

The copper and the bills therefor were delivered by plaintiff to defendant. Before the material had been shipped by plaintiff, and on October 26, 1932, the defendant wrote the following letter to Jackson Company:

“ Wm. H. Jackson Company

ífs *

“ With further reference to your order 36767, the Revere Copper & Brass Incorporated, with whom we are placing our order for the material, question our credit standing; this because of the recent reorganization of our Company and our inability to submit a new statement before November 10.

“ We understand Mr. H. A. Schleider of the Revere Company spoke to you on the subject and that you will deduct the amount of their material hills from remittances you make to us against this order, remitting direct to them for the amount of their bills.

“ This procedure is satisfactory to us and you may take this letter as your authority to handle the matter in this way.

“ Copy of this letter is being sent to Revere Copper & Brass Incorporated.

“ Very truly yours,

“ THE GEHNRICH CORPORATION,

“ A. V. Mahay.”

(Italics ours.)

The only reasonable inference to be drawn from this communication is that defendant had purchased the copper from plaintiff and that Jackson Company was to deduct from the total sums due from it to defendant, the amount due plaintiff for the metal and to remit direct to plaintiff therefor. If the metal had actually been purchased by the Jackson Company, it would hardly have been necessary for defendant to authorize Jackson Company to pay for it. Another fact inconsistent with the defendant’s claim is that in billing its own customer for the articles manufactured by it, defendant included the price of the copper. Surely defendant could not have expected Jackson Company to pay for its own copper. There was here no agreement or understanding that defendant should be relieved of its obligation to pay for the goods if the Jackson Company did not.

The defendant stresses the fact that the plaintiff also forwarded bills to the Jackson Company for the copper. This, however, was adequately explained by the testimony which showed that such bills were requested by the Jackson Company merely to have some record in its files to justify the payment to plaintiff.

Defendant also contended that plaintiff filed a claim for the cost of the merchandise with the trustee in bankruptcy of the Jackson Company and points to this as proof of a direct sale to the bankrupt. The claim was filed on April 14, 1933. An examination of it establishes that it was for “ goods sold and delivered through its New York division to the Gehnrich Corp. * * * which the bankrupt promised and agreed to pay.” This can- scarcely be construed as an admission by plaintiff that the copper was sold to someone other than defendant. It is to be noted that in the same bankruptcy proceeding, as early as December 27, 1932, defendant filed a proof of claim in which it included the cost of all the copper material in question.

We think that upon the whole case plaintiff fully established its right to recover. Defendant, of course, is entitled to have credited against the judgment sums, if any, paid by the trustee to plaintiff in the Jackson Company bankruptcy since the trial of this action.

The judgment should be reversed, with costs, and judgment directed for the plaintiff for the sum of $2,326.37, with interest from November 2,1932, and costs.

Martin, P. J., Untermyer and Callahan, JJ., concur; Dore, J., dissents and votes for affirmance.