Young v. . Thurber

New York Court of Appeals

Young v. . Thurber

91 N.Y. 388, 1883 N.Y. LEXIS 51

DecidedMarch 6, 1883

StatusPublished

This text of 91 N.Y. 388 (Young v. . Thurber) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Young v. . Thurber, 91 N.Y. 388, 1883 N.Y. LEXIS 51 (N.Y. 1883).

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Opinion

Rapallo, J.

The plaintiff, as assignee of Jacob Hermanee, brought this action to recover of the defendants the price of certain glassware sold to them by Hermanee. The defendants claim to set off against the plaintiff’s demand an indebtedness of an incorporated company known as the Ellenville Glass Works, to the defendants, for goods sold by them to that company. The grounds upon which the defendants claimed this set off were that Hermanee was the consignee and sole agent of the Ellenville glass works, for the sale of its wares, and that the goods sold to the defendants by him, were sold as such agent and consignee; that the company had become insolvent, and that under the circumstances the defendants should in equity be allowed to set off their claim for goods sold to the company, against the bill of goods sold to them by Hermanee as the agent of the company.

They further claimed that after a part of the goods sold by them to the company had been delivered, and when the company applied to make further purchases, Hermanee agreed with them that their sales to the company should be credited upon his bill against them.

The facts proved and found do not sustain these claims. It is established by the evidence and findings, that Hermanee was the consignee and agent of the company for the sale of its wares, but it also appears that he became such agent and consignee under an arrangement by which he was to make ad *391 Vances to the company on the goods consigned to him, and to reimburse himself these advances out of the proceeds of the sales. That under this arrangement he made advances exceeding the value of the goods consigned, and sold the goods in his own name. He was consequently not simply the agent of the company, but he had an interest of his own in the proceeds of the sales, and there would be no equity in allowing his vendees to retain out of the proceeds of the goods thus consigned to and sold by him, and upon which he had a right to rely for the reimbursement of his advances, independent claims which his vendees might have against his consignors.

The allegation that Hermanee agreed that the purchases of the company might be credited to the defendants on his account against them is not sustained. The evidence in support of this allegation consists wholly of written correspondence between the parties, which is set forth in the findings of the referee. From the correspondence it appears in substance that after the defendants had sold to the company a portion of the goods for which an offset is now claimed, they wrote to Hermanee, requesting his consent that the purchases of the company be charged to his account, and that he refused such consent, but at the same time stated that when the defendants’ account should fall due, he would accept the company’s draft for it. This promise the referee, before whom this action was tried, construed as an agreement that the goods sold by the defendants to the company should be set off against the purchases made by the defendants from Hermanee, and consequently allowed the set off. The court at General Term reversed this decision, and we think correctly. Hermanee was under no obligation to allow the claims of the defendants against the company to be set off against his sales to the defendants, upon the proceeds of which he had a lien, and his promise to accept the company’s drafts appears to have been entirely voluntary. If enforceable on the ground that goods were delivered on the faith of it, the promise could be enforced only according to its terms, and it is found as a fact that the defendants never obtained, or attempted to obtain, the order *392 of the company on Hermanee for the bills of goods sold by° them to the company.

These reasons, we think, are sufficient to require us to affirm the order of the General Term, and it follows that judgment absolute should be rendered against the appellants upon their stipulation.

All concur.

Order affirmed and judgment accordingly.

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Rapallo, J.

The plaintiff, as assignee of Jacob Hermanee, brought this action to recover of the defendants the price of certain glassware sold to them by Hermanee. The defendants claim to set off against the plaintiff’s demand an indebtedness of an incorporated company known as the Ellenville Glass Works, to the defendants, for goods sold by them to that company. The grounds upon which the defendants claimed this set off were that Hermanee was the consignee and sole agent of the Ellenville glass works, for the sale of its wares, and that the goods sold to the defendants by him, were sold as such agent and consignee; that the company had become insolvent, and that under the circumstances the defendants should in equity be allowed to set off their claim for goods sold to the company, against the bill of goods sold to them by Hermanee as the agent of the company.

They further claimed that after a part of the goods sold by them to the company had been delivered, and when the company applied to make further purchases, Hermanee agreed with them that their sales to the company should be credited upon his bill against them.

The facts proved and found do not sustain these claims. It is established by the evidence and findings, that Hermanee was the consignee and agent of the company for the sale of its wares, but it also appears that he became such agent and consignee under an arrangement by which he was to make ad *391 Vances to the company on the goods consigned to him, and to reimburse himself these advances out of the proceeds of the sales. That under this arrangement he made advances exceeding the value of the goods consigned, and sold the goods in his own name. He was consequently not simply the agent of the company, but he had an interest of his own in the proceeds of the sales, and there would be no equity in allowing his vendees to retain out of the proceeds of the goods thus consigned to and sold by him, and upon which he had a right to rely for the reimbursement of his advances, independent claims which his vendees might have against his consignors.

The allegation that Hermanee agreed that the purchases of the company might be credited to the defendants on his account against them is not sustained. The evidence in support of this allegation consists wholly of written correspondence between the parties, which is set forth in the findings of the referee. From the correspondence it appears in substance that after the defendants had sold to the company a portion of the goods for which an offset is now claimed, they wrote to Hermanee, requesting his consent that the purchases of the company be charged to his account, and that he refused such consent, but at the same time stated that when the defendants’ account should fall due, he would accept the company’s draft for it. This promise the referee, before whom this action was tried, construed as an agreement that the goods sold by the defendants to the company should be set off against the purchases made by the defendants from Hermanee, and consequently allowed the set off. The court at General Term reversed this decision, and we think correctly. Hermanee was under no obligation to allow the claims of the defendants against the company to be set off against his sales to the defendants, upon the proceeds of which he had a lien, and his promise to accept the company’s drafts appears to have been entirely voluntary. If enforceable on the ground that goods were delivered on the faith of it, the promise could be enforced only according to its terms, and it is found as a fact that the defendants never obtained, or attempted to obtain, the order *392 of the company on Hermanee for the bills of goods sold by° them to the company.

These reasons, we think, are sufficient to require us to affirm the order of the General Term, and it follows that judgment absolute should be rendered against the appellants upon their stipulation.

All concur.

Order affirmed and judgment accordingly.

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Bluebook (online)

91 N.Y. 388, 1883 N.Y. LEXIS 51, Counsel Stack Legal Research, https://law.counselstack.com/opinion/young-v-thurber-ny-1883.