The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-09-28
Supreme Coart-Circuit.

|
Supreme Coast-Circoit.
Before Honorable Judge Roosevelt
ACTION on ALLEGED MERCANTILE rHAUp.
SbPT. z7.-D7ogfQh y Hasbguce Brush &
Eastn0~, and Hunter, eunia & Vcrn.m This
was an aotion 20 recover tho value Of 250 kegs Of
| "a December, 1850. ~ is alleged that MIR. swain
came to tho plaintiffs to purchase 500 kogs of lard
on credit. The olerk whom he Jaw refused to sell
on tho condition offered, but asked him if he could
pay for IL on delivery aud he said he could, and nj
the same time, referred to several persons ss to his
solycLcy, amongst whom he named Brush & East
mar, and oso Mr.. Bddeli. The PLAINTIFF agent
| called on Brush & Eastman, who told him thet the
house was good, and that thoy (Brust & Eastman)
| had sold them articles credit lie then
| applied 70 the other reference, who also said he
| hsd sold them goods on credit and that Hasbrook
| bud put % 600 INTO the On these repro
senta;ons the plaintiffs agreed TO coll tho 500 Kegs
| OF lard to Hunter, Swain & Varnum, FOR cash on
| delivery. When the terms of sale were agreed upon,
Swain told him That Varnum was in the osrtDg
| hus,nets and That no would curry the goods, but
that IL would take three four days 30 complete
the delivery. On tire 9TH of December the morning
after tho last delivery, the clerk of the p.nictifj
called at the store OF Hunter, Swain & Go ,buti0uud
mono of the parties there. On the 9h. Swain csme 10
the pGnts and asked them not to send in the,r bill
for day or two butthey SAID that they pectod to
bc paid delivery Itappeared that the oeiendsnts
Hunter &c Go, aleo called ON the other defendants,
Brush Eastman, for extension OF time for lard
that they had purchased from them. Brush pre-
vailed On theni 10 make an assignment to him.
SWAIN accordingly aid so, aud delivered tho whole
Of the lard to Brush < Eastman. Tho plaintiffs
repevined for $50 kegs OF lard, and bond Was
given for their v8uc pending the result OF this suit
For tho defence il was contendsd that thoro wasa
bona fdc purchase on tho part of Hunter rain &
Co that the goods wore delivered ioto their pos
session, sold 20 tbem on credit, sId ihas they had
perfect right 30 mako tho assignment; tbatth
dishonesty, and that they had right 20 ~.
sign to preferred or otois THIS Cou,t in the course
Q. it charge 20 The jury, remarked that il appeared
III evidence that Sw9in had asked for the oreuit and
that the plaintiffs refused itin other words, they
refused to take tho risk OF these parties. Ihey
said, 'Wo viii sell You, but We Will sol you
for cash, and cash only" Having repu6iatod the
idea of credit, how is the transaction explained
Mr.. Nainum was The owner of cart, ard he said
II they gave him timo enough he would cart the
goods himself. This was FOL credit, but a conve-
nicrce in tho mode of delivery. He said that no
might want week for that purpose TO curt it across
the ferry to Brooklyn. On the I'd December, Mon
day, the sale was made il was closed that day,
ana entcyed or the books. On the next day the
eaftpge commenced and seventy. two kegs were TIA
kan ; the next day 3l2 kegs the next dag some
more, and on Tho sixth DAY eighty one kegs were
csTttd, and that, together with tue previous num-
Der, makes up the 800. ahe moaent that delivery
VS. completed tho payment vas duo, aud il is not
c0ntendco ttas tho money was to be paid until it
was completed. The lard WINS sent AID thu money
demand ed. ltvasthe plaintiffs idea tia; the money
Was to be pad on delivery Of the last parcel. II is
sworn TO by OF the defendants, that he him
self went 10 The store Of the plaintiffs and
begged that the bin might not be seat that day
Why do that, If re did not understand that is
be paid that cay The court asked whether it did
not appear 10 the jury tnst the understanding was
that II was cesh sale, 10 be paid tor or be lay Of
delivery! Then Was tbs condition fuldoi. VAST
wayoc! Is there anything to show hat ii vas
waiyeo! The last delivery was maae II the eye-
Mug, and tle next morning dewaud for payment
was made Is that Ia SAVER! IL seemed 10 The court
not; hut, ag All eysugs, tbat was for ne jury to
say. If rhe condtion was tul6ed, and not waived,
4 o an md To he
case. SUPPOSE il vas rot n conditional sale,
but sale credit, IL cannot be Pretended
shat it was . more than seven days credit
L the plaintiffs sie ,uis.d by the Sendee, the
defendants have right to withhold those
goods. On being ineuogeted, what is Biddelrs
answer, He stated that Chey abun1antiy able
to psy-thet they gooo-thc term good" the
court supposed was used N commercial sense Bat
he (BiodeIi) went far her. and that far enough,
if il not Tue hc represented that Swain had told
him tbat yaInum bad put ~, 600 into the firm. aud
that the source from whicA it vas his sale of
real estate in Brooklyn What are the facts as to
their being roco, here is firm, begpa in July,
1850, making lard oil, Sc. They began With a
capital-s"ain noth'rg, and the two other part
Dsrs 500 each II 900 between three families
500 of il vas apirouisted in fixtures and $500 in
horse and cart End some other little matters. The
whce Of the y 900 d"!ndles OF, when it comes TO
be sold, 10 500 CT 500. What becomes OF tho |
S. coo! Mr. Bddc is equally responsible for hia |
representations Mr. Swain. the purchase !
Effected under the represent shat they were abo
]
The afairs Of the concesn are in nutshell The
assigDne hts were made on the 9th Of September,
the last Of the leid having been delivered the
evening Of the 9th The debts consisted Of two
debts They bad hand nothing but these
iXtures, and the hcrse aud wagon, to pay
these eutecedcnt debts. Could any maa say
that he was solven: under such circumstances!
Here IL o nan not only worth nothing, but a6so-
lutey in debt, and ii be said that be is perfectly
GOOD Here ore tie goods scarcely dry scarcely
cold in that factory, and the delivery of them
tcarcoly contaminated, when they are taken to pay
o preferred creditor. There is something shocking
in the meant 10 say, 1t shocks the moral sense
If that indeed DO COMMERCIAL morality, the less
they had to do with It the better The law does
not encourage it does lot allow-it frowHs upon
references IN dtbs Ths law euacts that
the person who adopts the right. OF pre-
ference Of creditors cannot obtain relief under
the Insolyent Debori Acs. Bu, wien asked
Why he did so-why lie gaze this rrcfreDce-he an
swered that he lad perfect right to do so-"M
will is pleasure, Is all that nc said ii pays them
in ull cut Of tho property OF these innocent ven
dors because he expects, perhaps, to be re. esta
blished in business by those parties. The court
then explained how far Mr. SWANS testimony was
admissible ard concluded by saying that If this
c conditional sale. not waived, The plaintiffs
were entitled 20 recover II it a sa,e credit,
and ;hat it Was fraudulent, THEY were also entitled
u recover. rs regards tine ease against the other
qecadsnts the Ia;nti, OILY clam the 'pgscas s5o
sion Of irsud is essentially for the jury. Il they
found the condition not waived, the plaintiffs
arc cntitca 20 recover, and il the lard was delivered
on credit, ard there Ms fraud, they agc likewise
entitled to recover. Verdict for plaintiffs against
Brush 4 Easj man for :737 ~, the vslue Of 253
kegs, and against Hunter. SSan & Varnum for
81, iG4 -, the value 81 900 kess, together with
damages for detention Of tho goods
Supreme Court.-speclas Term,
DECISION A. 10 Jugis piCrIoN.
By Hon. Judge Mitchell
SHrT 27.---dncarise, ami offers, odn'rs II Bush,