Page images
PDF
EPUB

Note on Settling an Estate by Contract.

parties hereto have ascertained and determined, after such examination, that his said interest did not, and does not now, exceed the sum of dollars.

And whereas, the condition of the personal assets and affairs of said firm is such that great length of time will be required, and large expense incurred, in and about the sale and collection of its assets and settlement of its business, which would more than balance any interest on the share of said deceased partner which could be lawfully claimed by the said parties of the second part, as executors as aforesaid.

And whereas, the said surviving partners, parties of the first part, are ready and willing and have offered to pay to the said parties of the second part, as executors as aforesaid, in liquidation and settlement of the said interest of said deceased the sum of dollars in installments as follows, viz.: designating

amounts and days.

And whereas, the said parties of the second part deem it for the best interest and advantage of the devisees and legatees under said will, for the reasons above stated, and for the further reason that, in their opinion, said sum is all that could be realized from a protracted liquidation, to accept said sum, to be paid, as above stated, in full payment, settlement and discharge of all the right, title and interest which the said deceased, at the time of his decease, had in the business property and effects of said late firm of including the real estate above mentioned,

Therefore it is understood and agreed by and between the parties hereto that upon the payment as aforesaid by the parties of the first part to the parties of the second part of said sum in installments as above mentioned, and on the delivery of the conveyance of said real estate as hereinafter provided, that the said parties of the second part, as executors as aforesaid, shall release and forever discharge the said parties of the first part, by proper instrument in writing for that purpose to be duly made, executed and delivered to them, of and from all claim and demand whatsoever which the said deceased at the time of his decease had, or which the parties of the second part as executors as aforesaid have, may or can have against said parties of the first part or either of them as surviving partner or partners of deceased.

It is also further understood and agreed that the right, title and interest which said deceased at the time of his decease had in and to the said premises designated as co-partners as aforesaid, shall, in accordance with the express request and in pursuance of a mutual agreement between the parties of the first part, be released, granted

Note on Settling an Estate by Contract.

and conveyed to A. B., one of the parties of the first part, or to such person or persons as he may designate by a proper instrument executed and delivered by the parties of the second part on or before the 18.

In witness, etc.

day of

Annexed was the following:

In consideration of the sum of one dollar to each of us in hand paid, the receipt whereof is hereby acknowledged by each of the other persons signing this agreement, we do mutually for ourselves, our and each of our heirs and personal representatives, hereby approve the foregoing agreement dated , and providing for a settlement and liquidation of the interest of Y. Z. in the real and personal assets of the late firm of, and do hereby ratify and confirm the same; and we do hereby jointly and severally covenant and agree that we will not, nor will any one of us, by legal proceedings or otherwise, attempt to sell, or cause to be sold, the whole or any part of the real estate of which the said Y. Z. died seized, possessed or entitled to, except said property number designated at any time prior to the day of 18, unless each and every of the parties hereto shall, in writing, signify his approval and willingness that any portion of said real estate should be sold before that time. In witness, etc. [Signed and sealed by all the legatees, etc.] In connection with the foregoing were a receipt for the installments agreed to be paid, and a general release (by the legatee now ultimately objecting), which release was expressed to be in consideration of $84.44 paid by the executors; and contained, besides the usual language of a general release, this clause: "The said sum of eighty four dollars and forty four cents being accepted and received by me in full payment and settlement of the balance due me for and on account of any and all claims against the estate of said Y. Z. or said A. B., C. D. and E. F., as executors as aforesaid; such settlement and payment to have the same force and effect as if made under and pursuant to a decree of the Surrogate of Queens County upon a final accounting regularly made before said Surrogate by said A. B., C. D. and E. F., as executors as aforesaid."

In Geyer v. Snyder, 140 N. Y. 394, the foregoing settlement was held neither void nor voidable, although two of the surviving partners were also executors. (1) The other executor's assent was enough to make a sale. (2) The sale was in effect by all the legatees. (3) A provisional estimate on the articles of copartnership, and the mere fact of entry of a larger valuation on the firm books was not sufficient to impeach the transaction for fraud. (4) Plaintiff had delayed to object for many years.

Talcott v. Canton Mills Co.

TALCOTT v. CANTON MILLS CO.

Court of Arbitration of the N. Y. Chamber of Commerce; February, 1894.

1. Factors.] A commission merchant who guarantees the payment of goods sold for his consignor, is not chargeable for the price of goods which he sold, but which he subsequently receives back with the consignor's consent in the settlement of a dispute as to their quality.

2. The same.] Nor is such commission merchant liable for the price of goods which he reports to his consignor as sold, but which he subsequently recovers back upon avoiding the sale for the fraudulent representations of the purchaser, where he exercised reasonable care and prudence in making the sale.

Arbitration of a dispute between James Talcott and the Canton Mills Company.

The facts are fully stated in the opinion.

E. L. FANCHER, OFFICIAL ARBITRATOR.-The Canton Mills Company in 1893 consigned certain goods to James Talcott to be sold by him as a commission merchant, and the payment for sales thereof was by him to be guaranteed. The contract between the parties is not produced, but the statement of its import by both parties is substantially the same.

Two sales of flannel made by the consignee-one of seven pieces for $52.53, February 16, and the other of twentysix pieces for $107.72, April 8-were reported to the consignor and credited to it at the time, in the consignee's account of sales. In May and June, six other sales of one hundred and fifty pieces of De Soto flannels at Ic. per yard, and one hundred and twenty-six pieces of the same goods at 13 1-2c. per yard, were likewise reported and credited. All the above sales were reported as made to Weil, Dreyfuss & Company, of Boston, Massachusetts. The conVOL. XXXI.-7

Talcott v. Canton Mills. Co.

signee admits his liability to pay the consignor for these May and June sales, except for the ninety-nine pieces below mentioned returned to Talcott, and fifty-one pieces afterward recovered back by replevin.

In the October account of James Talcott, he charges back to the consignor the goods sold in February and April, and of the other sales he also charges back ninety-nine pieces of the flannels sold at 11c. per yard, and fifty-one pieces of the flannels sold at 13 1-2c. per yard. To these four items the consignor objects; and the legality of these revocations of credit to the consignor is submitted to this court for decision.

From the correspondence between Talcott and Weil, Dreyfuss & Co., it appears that the purchasers had claimed the right to reject a part of the De Soto flannels because they were not equal to sample in quality. If this objection were well founded, it would be chargeable to the manufacturer and not to the commission merchant. Talcott wrote to the manufacturer July 26th stating the complaint, and that it would be necessary either to take back the one hundred and fifty pieces of flannels complained of, or to make some allowance on the same, and suggesting that the matter of settlement be left to him. He was given full authority to settle according to his judgment, by letter of July 27th. Not being able to agree with the purchasers upon the allowance to be made, he elected to receive back ninety-nine pieces of the goods and cancel the sale as to them. The title thus reverted to the owner of the goods, namely, The Canton Mills Company, and the ninety-nine pieces thus received back by Talcott are still held by him for its account. The consignor having previously received credit for these goods on the report of sale, was properly charged with this item, and will, of course, be entitled to the proceeds when the goods are sold.

In the fall of 1893, Weil, Dreyfuss & Co. failed, and it then transpired that the statements of its condition

Talcott v. Canton Mills Co.

made by the firm on purchasing the goods were false, and that the firm was at that time insolvent. Talcott recovered back from the firm, or its receiver, the goods sold in February and April, and fifty-one pieces of the De Soto flannels, and seeks to charge back these goods so recovered and previously reported by him as sold. These fifty-one pieces of De Soto flannels were not returned by arrangement with the purchasers, as were the ninety-nine pieces above referred to.. They had been accepted as satisfactory by the purchasers, and no agreement for their return had, at any time, been contemplated. This item, therefore, stands on the same footing as the February and April sales, and the propriety of these three charges depends upon the liability of the commission merchant for goods of his principal, obtained from him under false representations-representations which entitled him or his principal to avoid the sale and demand return of the goods.

Assuming that by the contract between the parties the commission merchant undertook to guarantee the payment for goods sold, yet, in contemplation of law, the eighty-four pieces recovered of Weil, Dreyfuss & Co., after their failure, were never sold. They were obtained from the commission merchant by fraud, and he, therefore, never legally parted with the possession, nor did the consignor part with the ownership. The sale being tainted with fraud was voidable (Ash v. Putnam, I Hill, 302; Nichols v. Michael, 23 N. Y. 264, 270). The right of reclamation remained both in Talcott, the factor, and in the Canton Mills Company, the owner. The New York Court of Appeals has held that a factor, on discovering that he has been induced by fraud to part with the goods of his principal to an insolvent purchaser, who has placed the property in such a condition that it is difficult to follow it, has power to protect his principal by obtaining security (Joslin v. Cowee, 52 N. Y. 90, 95). This authority implies a right to reclaim the goods for the owner, if they can be reached in the possession of the fraudulent purchaser.

« PreviousContinue »