
    E. Frank Coe, App’lt, v. William Tough, Resp't.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 8, 1889.)
    
    Sale — when executoby — statute oe ebauds.
    Defendant, with a view to settling with plaintiff’s collecting agent, drew a memorandum headed “E. Frank Coe bought of William Tough,” followed by a list of articles with prices added, but not signed. Accompanying this was a letter saying: “ In order to liquidate and secure you in the payment of your acccount as now due, I will propose to do as follows: Bill of sale of goods enclosed, $1,520, * * * Balance your account to date, $1,975, Wm. Tough.” held that, there being no delivery, there was-no valid contract of sale to the plaintiff, and no title passed.
    Appeal from judgment of the general term of the supreme court, in the third judicial department, affirming judgment entered on verdict against the plaintiff.
    The action is replevin, brought to recover the possession of personal property, to which the plaintiff claims to have taken title by purchase from the defendant, by virtue of the following written memoranda, to wit:
    
      “ Hudson, R. Y., Feb. 18, 1885.
    
      " Mr. E. Frank Coe:
    
    “Bought of William Tough.
    :22 Thomas horse rakes, $21...................... $462 00
    2 Thomas hay tedders, $40 ..................... 80 00
    
    
      12 Tiger horse rakes, $21........................ 252 00
    1 Rowell leather top phaeton.................... 75.00
    1 Babcock leather top phaeton................... 120 00
    1 two-seat standing top Eng. spring wagon........ 90 00
    
      2 Columbus leather top side bar buggies, $117.50 .. 235 00
    1 Brockway end spring leather top buggy......... 85 00
    1 Brockway side spring open buggy.. ............ 49 00
    1 Waterloo end spring rubber top buggy.......... 72 00
    $1,520 00
    10 tons E. Frank Coe’s phosphate, $28............. 280 00
    $1,800 00
    “The above goods are in my warerooms, Ro. 22 Columbia street, and Varick street at storeroom of Hudson Agricultural Society, and are well insured.”
    “Hudson, R. Y, Feb. 18,1885.
    
      “F. Frank Coe:
    
    “Dear Sir.— In order to liquidate and secure you in the payment of your account as now due I will propose to do as follows:
    Bill of sale of goods enclosed..................... $1,520 00
    10 tons E. Frank Coe’s Phosphate................ 280 00
    Cash or customer’s note in a few days............. 500 00
    Customer’s notes or cash........................ 220 00
    $2,520 00
    “Balance your account to date, $1,975.
    “Yours truly,
    “ Wm. Tough.”
    It appears that defendant was indebted to the plaintiff $2,000, that on February 18, 1885, the collecting agent of the latter went to the defendant’s place to collect the debt, or obtain security for its payment; that the defendant proposed to sell to the plaintiff, and the ágent offered to purchase, property on account of the debt. Thereupon the defendant drew the first mentioned paper and handed it to the agent, who then suggested that the defendant also give him a note to the plaintiff, stating what had transpired between them. The defendant wrote and subscribed the other paper, which was put in the envelope in which the other had been placed. The defendant on this occasion paid to the agent twenty-five dollars to apply on the debt, thus reducing it to $1,975. The agent, having advised the plaintiff what he had done, returned to the defendant’s place on the 21st of February, taking with him a draft chattel mortgage, which the plaintiff had caused to be drawn, and informed the defendant that if he preferred he might execute it. But the defendant declined to do that. And thereupon the agent requested a delivery of the property, to which the defendant assented, and promised to furnish a room on the premises in which it might be placed, and give him the key to it. The agent said that was satisfactory. The defendant said he would not have time to do it that time. And it was then understood that the agent would come again on Monday, the 24th, when the goods would be separated and received by him. For reason of which the defendant was advised on Monday, the agent did not go that day, but did the next day, when the defendant refused to deliver the property. The property was taken upon the requisition in this action and delivered by the sheriff to the plaintiff. The trial court directed a verdict for the defendant
    
      Henry D. Hotchkiss, for app’lt; L. F. Longley, for resp’t
    
      
       Aff’g, 41 Hun, 639, mem.
      
    
   Bradley, J.

The first question presented is whether there was a valid contract made for the sale of the property by the defendant to plaintiff, and if so the further question will arise, whether it was an executed one, so as to pass the title to the plaintiff, or was executory merely. As no part of the properly was delivered to, or received by the plaintiff, and none of the purchase money paid, as required by the statute of frauds, the sale was void unless a note or memorandum of the contract was made in writing and subscribed by the defendant. 2 B. S., 136, § 3. The form of the memorandum as drawn was “ E. Frank Coe, bought of Wil-. liam Tough,” followed by a list of the articles of property in question with prices added. This paper was not at the end of it subscribed by the defendant, so that standing alone, whatever view may be taken of its terms, it was not effectual as a contract of sale. James v. Patten, 6 N. Y., 9. But it is contended that the note or letter written on the same occasion by the defendant, subscribed by him, and addressed to the plaintiff, may be taken in connection with the first mentioned memorandum, and the signature to the one treated as subscribed to both, each constituting part of the same instrument To permit this to be done, so as to relieve it from the operation of the statute, the two papers must have been so physically united or such reference made by one of them to the other, that they may be construed together as one instrument without the aid of oral evidence. Baptist Church v. Bigelow, 16 Wend., 28; Wright v. Weeks, 25 N. Y., 153; Drake v. Seaman, 97 N. Y., 230; affirming 27 Hun, 63; Stone v. Browing, 68 N. Y., 598. The two papers by their date purport to have been made at the same time, they are in the handwriting of the defendant, relate to the same subject, and the reference to the paper designated as a bill of sale in the one embraces in figures certain amounts corresponding with those in the other. They sufficiently referred to the same transaction to permit them to be cons traed together, and to be given such effect as they were entitled to. Tollman v. Franklin, 14 N. Y., 584; Peabody v. Speyers, 56 id., id., 230; Peck v. Vandemark, 99 id., 29.

The more difficult question arises upon the consideration of the construction and effect which maybe given to those papers. It has been held that a memorandum, in the form of that here designated as a bill of sale, with payment receipted, did not constitute a contract of sale so as to exclude paroi evidence of warranty, but was a mere receipt Filkins v. Whyland, 24 N. Y., 388.

While presumptively, at least, a receipted bill in that form will not have the character of a contract of sale, the effect, when no receipt is added, may be otherwise. Then it may be such a contract, or the written evidence of it, within the intention of the parties, and entitled to such effect. Terry v. Wheeler, 25 N. Y., 520; Bonesteel v. Flack, 41 Barb., 435.

That paper, standing alone, not being subscribed by the defendant, had no validity, and in connection with the other it must be treated as referred to for the purpose indicated by the terms of the latter, by which the defendant says that in order to liquidate and secure you (p.aintiff) in the payment of your amount as now due, I will 'propose to do as follows: Bill of sale enclosed $1,520.” And then adds another item of property with two items of cash or notes .to make up the amount of $2,520. And after stating the balance of the plaintiff’s account at $1,975, subscribes his name. "In'aid of the construction of the instrument, reference may be had to the extrinsic circumstances attending the transaction, between the defendant and the plaintiff’s agent. The latter called upon the defendant to obtain payment, or security for its payment, of the debt due his principal from the defendant. The interview resulted in an offer of the defendant to sell, and of the agent to purchase, some personal property on account of the debt; and for the purpose of doing so, the bill of sale, so called, was drawn by the defendant and handed'to the agent unsigned. The note or letter addressed to the plaintiff was written upon the suggestion of the agent that the defendant put "on paper a statement to be taken to the plaintiff of what had transpired between them.

The amount of the prices designated for the articles of property, with that of the proposed cash, or notes, was purposely made to exceed the debt, with a view to enable the plaintiff to realize from it the full amount of his account against the defendant. It is not important whether the purpose of the contemplated sale was to pay, or secure the payment of'the debt. The apparent design, as indicated by the oral evidence of the transaction, was a sale and purchase, and that the so called bill of sale was drawn, delivered, and received for that purpose. That was not accomplished by it. It is however contended that the paper afterwards written, addressed to the plaintiff, and signed by the defendant, was effectual to give to the former the effect of a bill of sale subscribed by the defendant; and that it was not embraced within the executory character of the proposition expressed in the other, but that only the payment or delivery of the cash or notes there mentioned was dependent upon the future action of the defendant. The intention of parties to a written in-strument must be derived from it, although its construction may be aided by the light of extrinsic circumstances. When this alleged bill of sale was handed to the plaintiff’s agent, it was ineffectuai for any purpose, whatever may have been the design of the parties. It does not appear that the other paper was then in contemplation, and its effect must be ascertained from its terms as they may be construed. In its relation to the former, it may be assumed that reference was made to fhe articles of property there mentioned. But it is difficult to distinguish the application of the offer or proposition of the defendant to any one, from any other portion of the means mentioned for the payment or security of the debt. It was to “liquidate and secure ” it as stated. The defendant proposed to do what he had not already done in that respect. He had neither transferred any of the personal property, or notes, and had made no contract to that effect. They altogether came within the purpose expressed and his proposition or promise to accomplish it was in form executory. If the paper called a bill of sale had been independently valid, a different view may have been taken upon construction of the writings. It would therefore seem that the support of the plaintiff’s claim of title requires the conclusion that the offer or promise of the defendant to sell to him the property was, or became, effectual for that purpose.

It is a rule as relates to personal property, that when by a valid agreement one party unconditionally agrees to sell to another, who agrees to purchase, and nothing remains to be done to complete the sale, the contract will be treated as an executed one, and title will pass, although no delivery or payment is made. Olyphant v. Baker, 5 Denio, 379; Terry v. Wheeler, 25 N. Y., 520. In the present case the proposition or promise of the defendant to sell the property was by its terms and import made with- a view to a subsequent acceptance by the plaintiff. There cannot, therefore, be said to have been any concurrent undertaking on the part of the latter to purchase. This proposition when made seems to have had no consideration for its support. It was a mere offer of a debtor to sell goods to his creditor in payment or security of the debt due the latter, founded upon no new consideration, but resting solely in the purpose, so manifested, of the debtor to pay the debt or secure its payment in that manner.

The conclusion would seem, for that reason, to follow, that a subsequent acceptance would not be effectual to create a valid contract of sale between the parties. Cooke v. Oxley, 3 Durn. & E., 653; Burnet v. Bisco, 4 Johns., 235; Utica & Schenectady R. R. Co. v. Brinckerhoff, 21 Wendell, 139; Chicago & G. E. R. R. Co. v. Dane, 43 N. Y., 240; Macedon & B. P. R. Co. v. Snediker, 18 Barb., 817.

In that respect this case differs from those determined in Burrell v. Root, 40 N. Y., 496; Justice v. Lang, 42 id., 496; 52 id., 323; Mason v. Decker, 72 id., 595.

In those cases the offers and promises of the defendants had the support of consideration, arising out of mutuality of agreement or produced in some other manner.

If these views are correct, there was no valid contract made by the defendant for the sale of the property in question to the plan-tiff, to support his claim of title.

The judgment should be affirmed.

All concur, except Parker, J., not sitting.  