Statement of case. the point by the General Term, this court would have taken cognizance of it, was not determined. We see no ground for ordering a re-argument, and the motion must be denied with ten dollars costs. NOTE.-It will be perceived that the last paragraph of the syllabus of this case as reported in 44 N. Y., 554, goes somewhat beyond the decision. The question as to what would be the action of the Court of Appeals is not determined.-REP. 46 637 116 207 MOSES C. GIBSON, Respondent, v. ORVILLE H. TOBEY and HERMAN D. BOотH, Appellants. Where upon the sale and delivery of goods the vendor receives from the purchaser the note or bill of a third person, the presumption is that the note or bill was accepted in payment, and satisfaction, and the onus is upon the vendor to show that it was not thus received. Plaintiff sold to defendants a number of hogs for cash on delivery. After the delivery was made and amount of purchase-money ascertained, defendant's agent, who made the purchase, stated he would have to go to the bank (some three miles distant) to get the money, and asked plaintiff which he would prefer, the currency or a draft on New York. Plaintiff chose a draft, and consented to the hogs being loaded on the cars, upon the agreement that the draft should be procured as soon as practicable. The draft was procured and accepted by plaintiff without defendants' indorsement. The draft was dishonored. Plaintiff thereupon tendered the draft to defendants and demanded its amount, and upon refusal brought suit. Held, that there was no waiver of the cash payment by the delivery of the hogs, and the sale was incomplete until the delivery and acceptance of the draft. The presumption of law that the draft was received as payment therefore applied. The action could not be maintained even if it should be held that payment in cash was waived and a credit given, and that the draft was received upon a precedent debt; the facts were conclusive that it was received as payment. (Submitted November 27th, 1871; decided December 12th, 1871.) APPEAL from judgment of the General Term of the Supreme Court of the fourth judicial department, affirming 116 208 116 209 46 637 171 1138 Statement of case. a judgment in favor of plaintiff entered upon the report of a referee. The action was brought to recover the contract price of a number of hogs alleged to have been sold by plaintiff to defendants. On the 1st day of November, 1867, at the city of Buffalo, the plaintiff sold and delivered to the defendants a lot of hogs for the sum of $3,408.07, to be paid on delivery. On the delivery of the hogs to them, the defendants' agent sat down and figured up what the hogs came to, and after agreeing upon the amount, told the plaintiff that he would have to go up town and get money to pay for the hogs, and inquired of the plaintiff which he would prefer, the currency or a draft on New York; the plaintiff replied that he would rather have a draft, for he wished to take it home with him; the agent said he would get a draft payable to the plaintiff's order. Defendants' agent asked permission to ship the hogs immediately, which was granted upon the understanding that the draft was to be procured and delivered as soon as possible. defendants shortly thereafter, and on the same day, procured from Henry J. Shuttleworth, a banker in the city of Buffalo, in good standing, a sight draft for $3,200, bearing date November 1st, 1867, drawn by him upon his bankers in the city of New York, and payable to the order of the plaintiff, and delivered said draft to the plaintiff, and paid the balance of the said price of said hogs in money. There was no agreement that the draft should be taken by the plaintiff at his risk. The The plaintiff resided at Mexico, in the State of Ohio. He left Buffalo on the said first day of November, and reached his place of residence on the evening of the next day, which was Saturday; and on Monday morning, the 4th day of November, 1867, the plaintiff deposited said draft in a bank near his said residence, in which he kept his account; the said bank immediately sent the said draft by mail to New York city for collection; on the 10th day of November, 1867, Statement of case. the said plaintiff received notice that said draft had been dishonored; the said draft was presented to the drawees for payment on the 6th of November, 1867, and payment refused; on the 4th day of November, 1867, the said Shuttleworth suspended payment, and telegraphed to his bankers in New York city not to pay any drafts drawn by him upon them; at the time of the drawing of said draft said Shuttleworth had funds in the hands of the drawees sufficient to meet the draft. On the 5th day of December, 1867, the plaintiff notified the defendants of the dishonor of the said draft, and subsequently tendered the draft to defendants' agent and demanded the money; this was refused. The plaintiff on the trial offered to surrender the draft to the defendants. The referee found and decided as matter of law: 1st. That the price of said hogs (to the extent of the amount of said draft beside interest thereon), was unpaid. 2d. That the draft was not a satisfaction of that part of the price of the hogs. 3d. That the plaintiff was entitled to, and he ordered judgment against said defendants for the sum of $3,666.66, and judgment was perfected in accordance therewith. George B. Hibbard, for appellants. The draft was taken in payment and satisfaction of the price of the hogs. (2 Kent's Com., 497, and cases; Tyler v. Freeman, 3 Cush., 261; Adams v. O'Connor, 100 Mass., 575; Palmer v. Hand, 13 Johns., 433; Noel v. Murray, 13 N. Y., 167; Whitbeck v. Van Ness, 11 Johns., 408; Young v. Stahelin, 34 N. Y., 258; Reed v. Cook, 15 Johns., 241; St. John v. Purdy, 1 Sandf., 9; Strong v. Hart, 6 B. & C., 160, 161; 13 E. C. L., 84; Frisbie v. Larned, 21 Wend., 450; Stith v. Morehouse and Darnell v. Morehouse, unreported, reversing Darnell v. Howard, 36 How., 511.) The findings, as settled in the case, control. (Hartman v. Proudfit, 6 Bosw., 191.) Had defendants indorsed draft, it would not be presumed to be received as payment. (Whitbeck v. Van Ness, 11 Johns., 408, 412; Breed v. Cook, 15 id., 241.) Failure of plaintiff to give Opinion of the Court, per CHURCH, Ch. J. timely notice of non-payment of draft is fatal to his recovery. (Smith v. Mercer, Eng. L. R., 3 Exch., 51; Woodruff v. Bennett, 1 Cow., 711; Drayton v. Hull, 23 Wend., 345; Denniston v. Inbrie, 3 Wash. C. C. R., 396; Coffer v. Powell, Anth. N. P., 68; Shrimer v. Ketler, 25 Penn., 61.) P. G. Parker, for respondent. The acceptance of a bill or note of a third party is not payment of a debt, unless by agreement of the parties. (Noel v. Murray, 3 Kern., 167; Gibson v. Tobey et al., 53 Barb., 190; Darnell v. Morehouse, 36 How. Pr., 511.) The draft was given upon a precedent debt. (Smith v. Lynes et al., 1 Seld., 41; Lupin v. Marie, 6 Wend., 77; Chapman v. Lathrop, 6 Cow., 110.) Plaintiff not guilty of laches, in not notifying defendants earlier of the dishonor of the draft. (Bradford v. Fox, 38 N. Y., 289; Dayton v. Trull, 23 Wend., 345.) CHURCH, Ch. J. The important question in this case is whether, from the facts found by the referee, his conclusion of law can be sustained. Did the acceptance of the draft by the plaintiff, under the circumstances found, constitute in law a payment for the price of the hogs? If it did, the plaintiff cannot maintain the action; but, if not, the judgment must be affirmed. In determining this question, it is proper to consider, whether the draft is to be deemed delivered and accepted upon the sale and delivery of the hogs, or upon a precedent debt contracted for the purchase of them. The rule differs in the two cases in the application of the presumption of payment. In the former the rule is, that if a vendor of goods receives from the purchaser the note or bill of a third person, such note or bill will be deemed to have been accepted by the vendor, in payment and satisfaction, unless the contrary be expressly proved; and in such a case the onus is upon the person receiving the paper. (Whitbeck v. Van Ness, 11 J. R., 408.) But when such note or bill is received upon a precedent debt, the presumption is that it was not taken in payment, and the onus of establish Opinion of the Court, per CHURCH, Ch. J. ing that it was so received is upon the debtor. (Noel v. Mur ray, 13 N. Y., 167.) The sale was for cash, payable on delivery. No credit was asked or intended to be given, but it is claimed that payment was waived by the absolute delivery of the property. It is competent for the seller to waive payment by an unconditional delivery; but the mere fact of delivery does not necessarily establish a waiver. If the seller accompanies the delivery with a declaration of the conditional terms, or if that be the implied understanding of the parties, the sale is conditional. (2 Kent's Com., 497.) After finding that the sale was for cash, on delivery, the referee finds, that on the delivery of the hogs to them, the defendants sat down and figured up what the hogs came to; and, after agreeing upon the amount, the agent of defendants, who made the purchase, told the plaintiff that he would have to go up town and get the money to pay for the hogs, and inquired of the plaintiff which he would prefer, the currency or a draft on New York, and the plaintiff said he would prefer a draft, as he wished to take it home; and shortly thereafter the agent procured a draft payable to plaintiff's order, and delivered it to him, and that he accepted it without indorsement, but did not agree to receive it at his own risk. Was this an unconditional delivery? I think not. The plaintiff doubtless reposed sufficient confidence in the defendants' agent to believe that he would go to a bank and procure the draft as agreed; but the idea of giving credit to the defendants for the price of the hogs was not entertained. It does not appear that the plaintiff had any knowledge of the defendants or their responsibility, and nothing was said on the subject. The agent of the defendants desired to ship the hogs on board the cars before he went to the bank, about three miles distant, for the draft. The plaintiff consented that he might do so, but only upon the agreement that the draft was to be immediately obtained. The agent agreed that he would procure either the money or a draft immediately; and the plaintiff consented to the delivery upon the condition that the draft should be procured as soon as practicable. It SICKELS-VOL. I. 81 |