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2 Hilt. 157

Schmidt v. Kattenhorn

New York Court of Common Pleas

Decided December 15, 1858

New York Court of Common Pleas · decided 1858-12-15

<p>In an action for damages for the unlawful conversion of certain goods, it appeared that the goods in question were sold by the plaintiffs to the defendants, on an agreement that they were to be paid for in cash. Previous to delivering the goods, the plaintiffs made inquiries, in respect to defendants, as to whether they could be “trusted with a cash article,” &e.; and, receiving a favorable answer, the goods were sent to defendants’ store, by a cartman, in the ordinary way. Bills wero sent in on the same day, followed by a call for the money on the day following, and on several days after. Defendants, however, refused to pay cash, but offered certain bills of exchange, drawn by plaintiffs, for a part of the amount, and the balance in cash.</p> <p>Held, that this evidence did not show an unqualified delivery of the goods, but that it was a proper question for the jury, whether, in making the delivery, the plaintiffs intended to waive the condition for payment in cash; and that a motion to dismiss the complaint, on the ground that the evidence showed an unqualified delivery, was properly denied. Daly, F. X, dissented.</p>

Decided 1858-12-15

Daly, First Judge, (dissenting).

¶1I do not see how it is possible, in this case, to sustain an action against the defendants for converting the property. The sale was for cash, but the delivery was absolute. No condition or qualification was annexed to it. No arts, device, or fraud were practiced by the defendants to get the property into their possession. One of the plaintiffs swore that, after receiving the order, and before delivering the brandy, wanting to know about the trustworthiness of the defendants, he made inquiries to know if he could trust them with a cash article, .and that the result was satisfactory; that he told Kattenhorn, one of the defendants, that he must be cautious about delivering; that he had made inquiries, and that he was pleased Avith the good account he got of him; and, further, that the brandy was given to the cartman Avith no special instructions, but simply with directions to deliver it. Some days after the delivery, one of the plaintiffs called and asked the defendant Kattenhorn for a check; and, upon the latter saying that he was not prepared, but Avould be in a lew days, the plaintiff asked if he would not be Avilling to give his note, as he (plaintiff) Avas very short. These facts, in respect to which there was no dispute, shoAV that the sale was complete, that the delivery was unconditional, that no stipulation Avas exacted or imposed showing that it was to take effect upon the payment of the price, and that no fraud was practiced to effect a delivery. It was a cash sale, in Avhich the article was delivered without exacting the cash at or before the delivery, or leaving it with the understanding that the title was not to pass until the money Avas paid. There could be no doubt, upon this state of facts, that it was the clear understanding of both parties that the defendants were at liberty to sell the brandy, or make use of it, the moment it Avas delivered, and that the plaintiffs relied upon the pecuniary *164responsibility of the defendant Kattenhorn, with which they were fully satisfied before a delivery was made. See cases collected in the following, case of Lees & Waller v. Richardson. Their only remedy was an action for the price. I think the j udgment should be reversed.

¶2Judgment affirmed.

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