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Statement of case.

This action was brought to recover moneys attached, in the hands of defendant.

The New York Condensed Milk Company commenced suit and caused an attachment to be issued against Sherman W. Scott et al., composing the firm of Malarcher & Co., which was delivered to plaintiff for execution. Defendants had purchased the stock of Malarcher & Co. for $40,000; $23,471.70 was applied to pay an indebtedness of that firm to them, and in the instruments of transfer it was declared and agreed that the balance of the purchase-money might be paid to and among the creditors of said firm, and the surplus, if any, to the firm. The attachment was duly served upon defendants, and judgment was obtained in that action. The complaint here alleged that, "at the time of such service, said defendants were indebted to and had property in their possession in a large amount belonging to said Malarcher & Co."

This was not denied in the answer. Upon trial defendants moved to dismiss complaint upon the ground that plaintiff had failed to show any property of Malarcher & Co. in their hands, which motion was denied. The referee directed judgment for the amount of the judgment in the attachment suits.

Henry Nicoll for the appellants. By the written transfer the right of property passed, and the defendants became trustees for the creditors. (Brooks v. Marbury, 11 Wheat., 28; Brown v. Winthrop, 1 John. Ch'y, 329; Cunningham v. Freeborn, 1 Edw. Ch'y, 256; same case on error, 11 Wend., 249; Nicoll v. Mumford, 4 John. Ch'y, 522; Porter v. Williams, 9 N. Y., 5 Seld., 142; Metcalfe v. Van Brunt, 37 Barb., 622.) A promise upon valid consideration to one, for the benefit of another, may be enforced by the latter. (Lawrence v. Fox, 20 N. Y., 268.)

William W. Niles for the respondent. Affirmative allegations in answer, although inconsistent with allegations in complaint, must be proved. (West v. Am. Ex. Bank, 44

Opinion of the Court, per PECKHAM, J.

Barb., 176; Wood v. Whiting, 21 Barb., 190.) The agreement was revocable until something had been done to create a privity between defendant and the creditors. (Barker v. Bucklin, 2 Denio, 45; see foot of page 50; Blunt v. Boyd, 3 Barb. S. C. R., 209.)

PECKHAM, J. When the plaintiff rested his case before the referee, the defendant moved to dismiss the complaint "on the ground that the plaintiff had failed to show any property of defendants in the attachment suit in the hands of the defendants in this action." Motion denied and exception.

Property was alleged in the complaint to be in their hands and it is nowhere denied in the answer.

It is averred in the complaint that, "at the time of such service" (service of the attachment), "said defendants were indebted to or had property in their possession belonging to said Malarcher & Co., in a large amount."

This is nowhere denied in the answer and is therefore taken as true. The objection, it will be observed, does not go to the amount, but it is that not "any property" was shown in defendants. This shows that the exception was not well taken.

The exception to the findings of fact cannot be sustained, as it is not well founded. It is to the findings, "that the defendants have not produced any proof before him of the allegations of their answer, that the amount due such creditors exceeded the surplus in their hands, nor of the amount due to such creditors."

It is certainly true that they did not produce such proof. That answers the exception. Whether they were legally required to do so or not is quite another question, which this exception does not raise. The defendants did not request the referee to make any findings of fact.

The only remaining exception is to the referee's conclusion of law, that the plaintiff is entitled to recover $1,150.60, and interest, from the defendants.

Statement of case.

Assuming that the finding of fact of the referee is right, as it is not in any manner excepted to, viz.: "That the defendants in the attachment sold to these defendants goods for $40,000, $23,417.70 whereof was paid by application to a debt due the purchasers, leaving a balance due from them of $16,528.30, and that it was in such instrument of transfer declared and agreed that the balance of such purchase money might be paid to and among the creditors of the said firm, and the surplus, if any, to such firm," there is then no ground for a claim that this balance of $16,524.30 did not belong to the defendants in that suit.

That sets forth no covenant or agreement on the part of the defendants that they would pay such balance to the creditors. The transfer as set forth simply authorizes them so to do. It "might be paid," is the language. But it was a debt due to the attached debtors. It might be discharged by a payment thereof to their creditors, nothing more. No trust is created or liability assumed by the defendants thus to pay. The money therefore still belongs to the vendors. (Kelly v. Roberts, 40 N. Y., 438.) If there be uncertainty or doubt as to this finding, it will not enure to the defendants' benefit to reverse a judgment. The judgment should be affirmed with costs.

All concur except ALLEN, J., not voting.
Judgment affirmed.

THE DUTCHESS COMPANY, Respondent, v. HENRY M. HARD

ING, Appellant.

Where in an executory contract for the purchase and sale of personal property, there is no warranty, express or implied, an acceptance by the vendee after examination or after an opportunity for examination, in the absence of fraud, is conclusive of an assent upon his part that the property is of the quality contracted for; but where the acceptance is induced by artifice or fraud of the vendor, by reason of which an examination is prevented or interfered with, the acceptance is not binding as an assent to the quality, and the vendee's rights under the contract are unimpaired thereby.

SICKELS-VOL. IV. 41

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Statement of case.

Where a portion of a writing is competent evidence for any purpose, it is not rendered incompetent because it contains other statements which are inadmissible.

(Argued April 15, 1872; decided April 30, 1872.)

APPEAL from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judg ment in favor of plaintiff entered upon a verdict; also, affirming an order denying a new trial.

The action was brought for an alleged breach of contract in the sale of a quantity of sumac.

Defendant contracted to sell and deliver to plaintiff 1,400 bags of sumac (Triangle R sumac), "quality to be like sample in every respect." Defendant caused this brand to be put upon bags containing another, and, as the proof tended to show, inferior quality; some ten or twelve bags were sampled by plaintiff, which corresponded nearly in quality with that contracted for, and the article tendered was accepted, plaintiff relying upon the brand for the quality of the balance. It was sent to plaintiff's works, and upon being tested was found to be of an inferior quality and unfit for plaintiff's use; a return of the sumac was thereupon offered by plaintiff, and a demand of the money paid therefor. Defendant refused to accept a return or to refund the money.

Further facts appear in the opinion.

Henry Nicoll for the appellant. The cause of action is a breach of contract to sell and deliver, not a breach of warranty, (Reed v. Randall, 29 N. Y., 358; Hargous v. Stone, 1 Seld., 373.) Plaintiffs are concluded by the acceptance. (Reed v. Randall, 29 N. Y., 358; Leavenworth v. Parker, 52 Barb., 132.) Their right to reject the article did not survive the necessary time and opportunity for its examination. (Reed v. Randall, 29 N. Y., 358; Fisher v. Samuda, 1 Campb., 190; Griswold v. White, 4 Esp., 95; Mitner v. Tucker, 1 C. & P., 15; Sprague v. Blake, 20 Ward., 61; Hargous v. Stone, 1 Seld., 73; Parker v. Palmer, 4 B. & A., 387; Chapman v. Martin, 11 M. & W., 534; Beverly v. Lincoln Gas Co., 6

Opinion of the Court, per CHURCH, Ch. J.

A. &. E., 829.) Where irrelevant testimony has been admitted and excepted to, a new trial must be granted, unless the court can see, beyond doubt, that it cannot possibly have prejudiced the party excepting. (Williams v. Fitch, 18 N. Y., p. 546; Underhill v. N. Y. and Harlem R. R., 21 Barb., 496; Farmers' and Manufacturers' Bank v. Whinfield, 24 Wend., 419; Whiting v. Otis, 1 Bosw., 420; Gortlet v. Mead, 7 Wend., 193.)

Homer A. Nelson for the respondent. The contract was a sale with warranty. (Messenger v. Pratt, 3 Lans., 234; Mullen v. Eno, 14 N. Y., 597.) The acceptance was induced by fraud and not binding. (29 N. Y., 358; 45 id., 265.)

CHURCH, Ch. J. The learned judge who tried this case at the circuit ruled that the contract for the sale and purchase of the sumac was executory, that there was no warranty, express or implied, and that the acceptance of the delivery of the merchandise after an examination, or an opportunity for examination, was conclusive upon the plaintiffs of an assent upon their part that the property was of the quality contracted for, and in the absence of fraud prevented any claim by them on account of its inferior quality. It is unnecessary, therefore, to review this ruling, as this construction of the transaction was the most favorable for the defendant. The case was submitted to the jury upon the question whether the plaintiffs were induced to accept the delivery in consequence of the defendant's having caused the article to be falsely branded, and that it was in fact inferior to the article purchased, and the jury found against the defendant. There was no error of law in this ruling. The acceptance of the property under such a contract implies a consent or agreement on the part of the vendor that the quality is satisfactory, and is conclusive upon him. He is not bound to accept a different article from that contracted for, and he is entitled to an opportunity for examination. The agreed quality is regarded as a part of the contract of sale itself, and not as a warranty or agreement collateral to

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