Summary
In Hutchings v. Munger, 41 N.Y. 155, the debt was due and that was given (p. 158) as a reason why part payment could not satisfy.
Summary of this case from Thomas v. ZahkaOpinion
Cause argued June 23, 1869
Decided September 25, 1869
James L. Angle, for the appellant.
James Noxon, for respondent.
The only exception, insisted upon by the counsel for the appellant, was that taken to the ruling of the referee, admitting the testimony of the plaintiff showing an agreement made by him with Mr. Silence, as agent of the defendant, to give one or two years' further time for the payment of the balance of the purchase price of the boat. This exception was taken on the ground, that there was no evidence of any authority from the defendant to Silence to make any such agreement. In this position, I think the counsel is correct. The evidence showed that the debt and contract had been transferred by Silence to the defendant. That the plaintiff was aware of this transfer, when called upon by Mr. Silence, as agent for the defendant, to receive the money due. All the evidence of Silence's authority was his possession of the notes for the purpose of receiving the money due thereon. This possession was evidence of his authority to receive payment, but failed to show any authority to do anything else. Authority to collect or receive payment does not include authority to make an agreement to extend the time of payment. Besides, the agreement to give further day of payment, if the agent was authorized to make it, would be void for want of consideration to support it. All the debt being over due, payment of a part is no consideration for a promise to give further time for the payment of the balance. The judgment, if not sustained upon other grounds, must be reversed.
The referee finds that, after the entire amount had become due, the plaintiff was permitted by the defendant to retain possession of the boat, and that he paid to him $281, to apply upon the contract for its purchase. This was an assent by the defendant to the delay, and a waiver of the forfeiture, incurred by the plaintiff thereby. ( Lawrence v. Dall, 3 Johns. Chancery, 23.) It was a recognition of the contract as still in force, and of the right of the defendant to acquire title to the boat by payment of the residue of the purchase money in future. In the absence of the agreement fixing the time, which we have seen was void, the money became payable whenever requested by defendant. The plaintiff's right to acquire title to the boat by paying the residue of the price, would continue, until such request was made. Such were the rights of the parties, when the plaintiff tendered to the defendant more than the amount due. This tender was as effectual in giving title to the plaintiff, as if the money had been received by the defendant. ( Kemble v. Newcomb, 10 Wend., 374; Kortright v. Cady, 21 N.Y., 343.) It follows, that by this tender the plaintiff acquired title to the boat, and that the defendant committed a trespass in subsequently taking it from his possession. This, I think, gave the plaintiff a right of action to recover the value of the boat. But the referee deducted therefrom the unpaid purchase money, and gave judgment for the residue only. Of this the defendant could not complain, and for ought that appears, the plaintiff assented to such deduction for the purpose of finally closing the transaction. Upon appeal to the General Term, that court ordered a reversal of the judgment, unless the plaintiff assented to a further deduction of the sum tendered over and above the sum actually due, which deduction was made. Upon what principle this deduction was made by the General Term, I am at a loss to discover. But of this the defendant does not complain, and the plaintiff has not appealed. The judgment of the General Term must be affirmed with costs.
JAMES, J., also wrote an opinion for affirmance on substantially the same grounds.
All the judges concurring for affirmance.
Judgment affirmed.