Brown v. Hall

By the Court

The contract for the sale of the cows included ten cows at fifty dollars a piece, and two cows at seventy-five dollars a piece. The defendant first agreed to sell the ten cows, and after this the purchaser asked the price of the other two cows, and the price was *180given, in case.the purchaser wanted them when he came after the others the next Thursday. After this the twenty dollars was paid on the contract to the defendant, and before the defendant left it was agreed that the two cows should be counted in. When the money was paid, the contract was, as testified to by plaintiff’s witnesses, that the defendant sold ten cows, with the right to take two more. As found by the verdict of the jury, the contract was an entirety, and the first question to be considered is whether the condition attached to the purchase of the two cows, before the money was paid, although ratified before the parties separated, rendered the contract void by the statute of frauds. (2 R. S., 136, § 3.)

I am inclined to think that the contract was valid for the purchase of the two cows. There is no good reason, in my opinion, why a contract for the purchase of property at the option of the purchaser, whose money is paid upon it, is not valid and binding upon the parties. There is no want of mutuality in such a contract. The vendor receives the money and the vendee pays it in consideration of the sale, and it cannot therefore be urged that there is no consideration for such an agreement. In Mills v. Hunt (20 Wend., 431), it was held that where goods are purchased in several parcels, to be paid for at a future day, the whole constitutes one contract, and a delivery of some of the parcels is sufficient to take the case, as to the residue, out of the operation of the statute of frauds. It was. said in that ease, that the case would be different where the purchaser paid for and took a delivery of some of the separate articles only, leaving the residue, undelivered ; nr where several articles were purchased at the same time, to. be paid for on delivery, and the purchaser afterward received and paid for some of the separate articles only. Such is not this ease, for money was paid in advance to bind the contract and to take it out of the statute. Nor is there any analogy between the case at bar and one where distinct terms attach to the bargain for different articles, though bought at the same time, and the acceptance of one article is *181not the acceptance of another, as in Price v. Lee (1 B. & Cr., 156 ; 8 E. C. L. R., 48), cited in Smith on Contracts, 3 Am. ed., 157.) The contract here was entire, and a payment was made as to the whole, and not on a part of it. The fact that the payment was afterward applied on the ten cows does not, in my opinion, change the aspect of the case. It is enough that the money was paid on the whole contract and the statute thus satisfied. This rendered it valid in all its parts, and the application of the money afterward does not render a valid contract void. Suppose the money paid had been applied upon one cow alone, it can scarcely be claimed that the contract was void as to the remainder. The contract was made valid, I think, as to the twelve cows by the payment of the money, and independently of the agreement, made about the same time and after the payment, to count the two cows in the contract.

There is another ground, also, upon which, I think, that the contract was valid. A few days after the sale the defendant made a contract with the plaintiff to keep the cows for him. He had also agreed with him to take him as his debtor in the place of the purchaser, Kinney, having received of Kinney the sum of §480 in cash, besides the twenty dollars originally paid. Here was a payment of all but the §150, and a delivery of the two cows by the agreement to keep them. The general rule is, that a delivery and acceptance may be accomplished as to ponderous and bulky articles by the performance of any act which shows that the seller has parted with the right and claim to control the property, and that the purchaser has acquired that right. (Brown on Frauds, § 318.) In Vincent v. Germond (11 Johns., 283) it was held, that when on a sale of cattle no earnest money was paid and the cattle left until called for, and the vendee afterward came and took the cattle without saying anything to the vendor, the delivery was complete within the statute of frauds. • In the opinion of the court the case of Elmore v. Stone (1 Taunt. Rep., 457) is cited, where it was held that an agreement between the parties that the vendor should keep the horses *182sold for the vendee at livery, was sufficient to vest the property in the buyer, without any written contract or earnest paid. The authority of this case has been doubted. (See 1 Corns., 268.) But in Bissell v. Balcom (39 N. Y., 275) it is cited, as well as the case of Martin v. Wallace (37 Eng. L. & Eq., 6), which is similar in some of its leading features to Elmore v. Stone. The point now discussed was not decided in Bissell v. Balcom, as the case went off on another ground.

I am strongly inclined to think that, by the contract between the plaintiff and the defendant, Hall became Brown’s bailee, and his possession was Brown’s possession. Inasmuch, however, as the contract was valid by the payment of the money, as I have already indicated, it is not necessary to pursue the investigation of this branch of the case any further.

It is said that the alleged sale of the cows by Kinney to the plaintiff was also void by the statute of frauds. As the defendant was not privy to that sale, I think he is not, in a position to raise the question, even if the contract was invalid. An usurious contract cannot be avoided by a mere stranger to the transaction, but only by a party who made it, or some one standing in legal privity with him. (Dix v. Van Wyck, 2 Hill, 522; Draper v. Trescott, 29 Barb., 401; Shufelt v. Shufelt, 9 Paige, 145.) The same principle appears to be applicable to a ease like the present one. But even if the defendant was at any time in a position to urge this objection, I think that he has waived his right to do so by agreeing to accept the plaintiff, in the place of Kinney, for the payment of the amount agreed upon as the price of the cows. He has, thereby, made a new contract with the plaintiff, which is binding if the original contract is lawful. Certainly, if the defendant was a bailee of the goods, he cannot set up as a defence that the bailor was not the owner. (Gerber v. Monie, 56 Barb., 659.)

If there is any force in the point taken, that the plaintiff could not waive the alleged tort and recover upon an implied contract for property sold, as the whole evidence is out, I think the objection can be obviated by conforming the pleadings to *183the proof under the liberal rules of pleading adopted since the Code of Procedure has been in operation. (Bigelow v. Dunn, 36 How., 120.) In furtherance of justice, the court may direct an amendment of the pleading before or after judgment, or on appeal, or treat the same as amended, or allow it to be amended nunc pro tnyic to sustain the verdict. (36 Barb., 27, 29 ; 40 Barb., 235, 242; 18 N. Y., 521; 21 N. Y., 305.)

Some other points are made hy the defendant’s counsel, but they are not well founded.

The judgment of the County Court must be affirmed with costs.

Potter, J., concurred in the result of the foregoing opinion

Parker, J., dissented.

Judgment affirmed.