Sloan v. Van Wyck

I. Although the machine was ordered, in the first instance by Hall & Green, when Van Wyck took Green’s place in the concern he called upon the plaintiffs, informed them of the fact, and then, by the assent of all the parties concerned, he was substituted as one of the contracting parties in the place of Green, This happened when the plaintiffs were making the patterns for it, and before they commenced any work on the machine itself. They then proceeded with the construction of the machine; with the understanding that Van Wyck was to be responsible. The plaintiffs received subsequent directions from him, and none from Green. When the machine was finished, Van Wyck called in relation to its delivery, and promised -that .$1000 should be paid on the day of the delivery. In short, the effect of all this was that the contract between the plaintiffs and Hall and Green was rescinded ; and a new contract was made between the plaintiffs and Hall and Van Wyck. Van Wyck was clearly liable.

II. Was this contract rescinded. by the plaintiffs taking possession of the machine, with the assent of Van Wyck ? If, as Judge Wright declared in his opinion, delivered in the Court of Appeals, in relation to the former trial, there was *640not a particle of evidence, at the second trial, tending to show that the machine was taken hy the plaintiffs on the order of the defendant, to enable them to sell it, and apply the proceeds to the payment of the debts which the defendant had incurred for it, the judge erred in submitting the point to the'jury. I have not had an opportunity of examining the evidence on the former trial; but it appears to me there was sufficient evidence- on this point, at the second trial, to go to the jury. First. Schwartz testifies .that .Van Wyck told him that Wood, the owner of the premises occupied by the concern, claimed the machine under a lien, and that the plaintiffs had better take it away, “ else it would be sold.” Van Wyck told him to sell it. This is not sufficient to exonerate the defendant from liability for a deficiency at the sale, if there should be one. But the defendant testifies that when he spoke to Schwartz about taking the machine away, he told him he must not trouble him (Van Wyck) any further about it. Schwartz said he would be satisfied to do so ; that is, not to trouble him again. Van Wyck further, testifies that he never directed Schwartz to sell it. On the other hand, Sloan testifies that he heard no such conversation as that to which Van Wyck testifies; “he said he wished he had never had any thing to do with the machine ; it had ruined him.” Sloan swears that Van Wyck never requested the plaintiffs not to trouble him again. Schwartz corroborated Sloan. Here there was plainly a conflict of evidence on this essential point—the release of the defendant’s liability by the re-delivery of the machine to the plaintiffs. Was this re-delivery for the purpose of satisfying the debt due to the plaintiffs, or was it merely for the purpose of selling -it on account, and applying the proceeds to its payment ? This was fairly put to the jury.

The judgment should be affirmed, with .costs,

Ingraham, J. concurred.

If the agreement between Hall & Green of the one part and the plaintiffs of the other .part, for repairing the old machine and making a new one had been reduced to writing, and signed by the parties, no lawyer could seriously insist that Van Wyck could be made liable upon it by reason of his purchase of the interest of either Hall or Green in the old or new planing machine. Where the contract is verbal, and the parties to it are clearly ascertained, I am not aware of any rule of law that will authorize a recovery against a person not originally a party to such contract.

When the Court of Appeals held that Van Wyck was liable for the work done by the plaintiffs upon the machines in question, it must be understood as holding, either that there was no contract between the plaintiffs and Hall & Green, or that it was abandoned by mutual consent and a new one entered into between the defendant and Hall and the plaintiffs.

It is not material which view of the law the court may have taken, so long as it is quite clear that it intended to hold that the defendant had rendered himself liable for the work, labor and materials for which this action is brought, jointly with Hall, whose partner he concededlv was.

The state of facts presented to the Court of Appeals is not changed by the second trial, and we must hold, therefore, that Van Wyck is liable, jointly with Hall, for the work, labor and materials in question.

As to the rescission of the contract, by reason of the taking back of the machine, constructed for the defendants, I entertain no doubt whatever. The plaintiffs delivered the machine to either Hall & Green or to Hall & Van Wyck ; it was put upon their premises, and actually^ used by them; after this it was too late for the plaintiffs to assert a lien as vendors, there being no condition annexed to the delivery of the machine.

When they repossessed themselves of it with the assent of *642Van Wyck, the contract between them was rescinded, and thereafter Van Wyck ceased to be liable upon the contract for its construction.

There are no facts proved on the second trial, which take the case out of the rule of law stated by Wright, J. in his opinion, in the Court of Appeals. I think we are required, in order to give effect to the law as declared in that opinion, to hold that the contract between the plaintiffs and Van Wyck was rescinded, and that the defendant is not legally liable thereon.

The judgment should therefore be reversed and a new trial ordered ; costs to abide the event,

Judgment affirmed.

Clerke, Ingraham and Mullin, Justices.]