
    The Hampshire Paper Co., Resp’t, v. James M. Hunt, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 13, 1887)
    
    1. Replevin—Possession by assignee—In what capacity to be sued.
    Though an assignment has been made,’and the property sought to be recovered has passed into the possession of the assignee, it is proper to bring the action of replevin against him individually, as the property is in his possession.
    3. Practice—When verdict should be directed.
    The jury should be directed to bring in a verdict in accordance with the instructions of the court, when the proof of a fact is so preponderating that a verdict against it would be set aside by the court as contrary to the evidence.
    3. Sales—Complete acceptance necessary.
    The acceptance of goods must be complete and unconditional, or else-there is no sale. If anything remains to be done by either or both of the parties, the contract remains executory, and the title does not vest in the purchaser.
    Appeal from a judgment entered upon a verdict under the direction of presiding Justice Van Brunt, in favor of plaintiff.
    The plaintiff is a manufacturing corporation, and the defendant is the general assignee of the firm of Evans & Darling, for the benefit of creditors. The action is in replevin. The plaintiff claimed the possession of two lots of Bristol boards, and took possession of them under the writ. The defenses to the action are-
    1. A general denial.
    
      2. That the defendant held the goods as assignee, but was-sued as an individual; and
    3. That the goods had been sold and delivered to the assignors by the plaintiff, and were in their possession when the assignment was executed.
    It appears from the evidence that the firm of Evans &■ Darling gave an order to the plaintiff to furnish them with certain goods mentioned in exhibit A. It appears that under that order the plaintiff sent to Evans & Darling twice the amount of goods called for;
    Southworth, the treasurer of the plaintiff, testified that “after shipping the paper, Evans & Darling both said it exceeded the quantity, and they did not know that they could take it all in account. That was the latter part of May; I should say 1885. I sailed for Europe the 20th, and told them I was going away and I would like to have the thing settled up. They said the bills were checked off; that we sent them twice what the order called for. Darling said he could not accept it. I said will you not accept it if I give you extra time? He said no, he would be willing to hold it there, and if I wanted to sell it he was perfectly willing, and possibly in the winter he might take it into account. In the meantime it was distinctly understood it was to be our goods. Evans & Darling never gave a note for this excess of goods, as far as I know, or ever paid for it, or ever promised to pay for it.
    Evans, one of the assignors, states that he was aware that “the goods received by our firm were largely in excess of the order given, and that the goods in suit are a part of that excess.”
    Darling denies that he said he would not receive the excess, but upon the court saying: “The question is whether you would take them as a delivery to you?” he answered, “No, sir; I made no such statement.” He also testified that he told Southworth: “We wish to consider the purchase the same as we would any purchase to have the goods until we had used up the previous portion, the portion which we had bought, and commence using those goods as soon as the previous amount had been used up.” He also testified: “The excess—I did state that the excess was considered by the firm—not exactly considered, but I told him that we meant to retain the excess, and use them the same as if we had received them- or had ordered them at the time, and we wanted to pay for them on that basis at the time we commenced using them. Southworth did not make any definite answer, either agree or disagree to my proposition. At that time he urged our firm to give notes for these goods, he wanted us to give notes dated first of July I told him we would settle for the goods we purchased as soon as we could check the goods off. Regarding the payment of these other goods, Southworth made the proposition to settle by notes, and I acting for the firm, wished to settle it upon the basis of goods purchased. His proposition was that the notes would fall due about November. What I wanted to do was not to give the notes until we commenced to use the foods. The only thing more I can remember was that, when, outhworth left, the matter was in statu quo. There was no settlement made.”
    Several letters between the parties were also put in evidence, from which it will also appear that no definite arrangement was ever made as to the time at, nor the manner in which the goods were to be paid for.
    
      James B. McVickar and Bobert 8. Budd, for app’lt; Arnoux, Bitch & Woodford and Haley Fiske, for resp’t.
   Lawrence, J.

We are of the opinion that the motion made by the defendant’s counsel to dismiss the complaint at the close of the plaintiff’s testimony was properly denied. The testimony so far from proving that the goods belonged not to the plaintiff, but to the firm of Evans & Darling, established just the reverse.

The second ground stated for dismissing the complaint, to wit, that no sufficient demand had been shown to have been made upon the defendant, was untenable. And even if there was any insufficiency in the proof as to the demand at that time, the testimony of the defendant himself supplies the defect. As to the third ground, upon which the motion-to dismiss the complaint was based, to wit, that the defendant should have been sued as assignee and not personally, we agree with the respondent’s counsel that as the plaintiff found the goods in the defendant’s possession, they could properly maintain an action against him as an individual for their recovery.

Nor was there, in our opinion, any fact to go to the jury upon the question of title, and the direction of the learned judge that a verdict be rendered for the plaintiff was therefore right. It has frequently been held that the acceptance of goods must be complete and unconditional or else there is no sale, and that when anything remains to be done by either or both the parties the contract remains executory, and that the title does not vest in the purchaser. See Hough v. Brown, 19 N. Y., 111, 113.

In delivering the opinion of the court in that case. Com-stock. J., in discussing the question whether it should be left to the jury to say what was the meaning of a certain letter which had been introduced in evidence, and which it was claimed amounted to an acceptance of the proposition of the other party, says: “But upon a careful consideration of the letter we are of the opinion that it was not intended and cannot be construed as the consummation of a contract, and on this ground, we think that the jury should have been instructed in the manner requested by the defendant. If it was intended to leave it to the jury to say, what was the meaning of the letter, the error is plain, because the construction of language clearly ascertained, whether in writing or not, belonged to the court and not to the jury.” See, also, Briggs v. Sizer, 30 N. Y., 647; Trever v. Wood, 36 id., 307; White v. Corlies, 46 id., 467.

The proposition of the defendant’s counsel, that if, upon any construction of the facts, the jury might have found for the defendant, the justice erred in directing a verdict for the plaintiff, we do not regard as sound. The latest case upon this subject is Dwight v. Germania Life Ins. Co. (7 East. Rep., 638), in which the court say: “If the proof of a fact is so preponderating that a verdict against it would be set aside by the court as contrary to evidence, then it is the duty of the court to direct a verdict,” and the court, after citing several other cases, quotes with approval from the opinion of Judge Allen, in Baulec v. N. Y. and Harlem R. R. Co. (59 N. Y., 366), in which it is stated that “it is not enough to authorize the submission of a question as one of fact to a jury that there is some evidence. A scintilla of evidence, or a mere surmise that there may have been negligence on the' part of the defendants, would not justify the judge in leaving the case to the jury.” See, also, Hyatt v. Johnston, 91 Penn. St., 196; The Improvement Co. v. Munson, 14 Wall., 442.

If this case had been submitted to the jury, and they had found for the defendant, we are constrained to say that it would have been the duty of the court to have set it aside, and that therefore tested by the cases above referred to, the direction given at the trial was right.

Again, it seems to be plain both from the oral and the written evidence, that the minds of the parties at no times met, and that, therefore, no contract was ever entered into, and that the title to the goods remained in the plaintiffs, and this was a question for the court and not for the jury.

There were some exceptions taken in the case to the-rulings of the court which should he noticed. At folio 64, the schedules annexed to • the assignment were offered in evidence, but were excluded by the court as irrelevant and immaterial. Those rulings we deem to have been correct. It is difficult to see how the schedules of the defendants’ assignors could affect the title of the property. Those schedules were merely statements of the assignors, not assented to by the plaintiff, and of course Evans & Darling' could not make evidence for themselves. These remarks, also dispose of the exceptions taken at folios 70 and 83 of the case. The bill which was offered at folio 69 was also properly excluded, on the ground that it appeared to be a. bill of another party.

The exceptions at folios 78 and 79 should not be sustained, because the evidence was immaterial and merely cumulative.

For these reasons we are of the opinion that the judgment, below should be affirmed, with costs.

Potter, J., concurs.  