Gurney v. Atlantic & Great Western Railway Co. , 2 Thomp. & Cook 446 ( 1873 )

Taloott, J.

[Appeal against the allowance of the claim of Naylor & Co.] The frogs in question were ordered of Messrs. Naylor & Co. by four different orders made at different times. ' By each order twenty-five frogs were directed to be furnished to the company. Three orders were made by the company, on each of which orders twenty-five frogs were delivered, and one order by the receiver on which twenty-two frogs were delivered and received without objection that the order was not complied with as to the number. The frogs were received and used by the company and receiver without objection or any offer to return. This, under ordinary circumstances, would preclude any objection on the part of the vendee that the quality of the frogs did not fulfill the requisites of the orders, according to the case of Reed v. Randall, 29 N. Y. 358, and other kindred cases referred to by the respective counsel. The referee, however, has found as facts that there was nothing in the general appearance of the frogs before use, nor any thing discoverable from a particular examination of them to show what was their real condition, which could only be tested by actual use, and that there was no presumption that because a single frog broke in using, the remainder would do so, and he held “ that the company had a right, notwithstanding the fact that one or' more frogs may have" broken within a very short time after being laid down, to lay down and use the remainder as being necessary in their business.”

We concede that the rule applied in the case of Reed v. Randall is not applicable until the vendee has had a reasonable opportunitya to know or ascertain, by the methods necessary for that purpose, whether the articles delivered under an - executory contract of sale comply with the contract. Such is the admitted doctrine of the cases referred to. But the error of the referee consists, as we think, in supposing and holding in effect that, where several pieces of a particular déscriptipn of goods have been ordered by one order, so as to constitute but one contract of sale for the whole number, the vendee has "a right to retain a part and reject the residue as not being in compliance with the contract as to quality. The right to reject goods delivered or tendered under an executory contract of sale and purchase, on the ground of the insufficiency of the quality, results from the fact that goods of a different kind or inferior quality were not contracted for, and the offer or delivery of such different or inferior articles is not in pursuance of the contract, and the default of the vendor is that he has not performed, or offered to perform, the contract of sale and purchase actually made between the parties. Under an express warranty different rights arise. The vendee is not obliged to return or offer to return the property, but may retain and use it, and have recourse against the vendor for all damages sustained in consequence of the quality of the article being inferior to that warranted, and, therefore, in such a case as this, under an express warranty the railroad company might have received and used all the frogs, and, if any of them proved defective and inferior to the quality warranted, have been entitled to recover of the vendors the damages sustained by reason of the defective quality of such of the frogs as proved deficient. But the vendee has no right to divide the contract and reject a portion of the attempted performance, while he receives and appropriates the residue. In this case there were four several executory contracts for twenty-five frogs each. Each of these contracts was entire and indivisible, except by the consent of both parties. When, therefore, the vendee discovered that one or more of the frogs delivered under any of these contracts was not in compliance with the contract, but was defective in quality, if he wished to reject any of the articles delivered under that contract, the duty devolved upon him of notifying the vendor of the alleged defect, and returning, or offering to return, all the frogs embraced in that contract. The referee proceeded upon the opposite theory, and held that as it was for the convenience of the vendee to retain and use a part of the articles delivered, he might, at his option, divide the contract, keep'a part of the articles upon the contract, and reject the residue because not in compliance with the contract. This, we think, the vendee cannot do. If the contract has been complied with, the vendee gets title to all the articles embraced in it, if not, and the vendee on that ground repudiates the attempted performance, he gets title to none. This principle may, in certain cases, be productive of inconvenience to the vendee. Where this is apprehended, he can easily guard himself against the operation of the rule by the terms of his contract. If he neglects to do this, he must put up with the inconvenience. He cannot make a different contract for the vendor from that which the latter has consented to enter into.

The order of the special term, therefore, allowing the claim of Naylor & Co. at the full amount of the contract price for the frogs delivered is affirmed.

[Appeal op Jeremiah S. Black, Esq.]

The appellant was employed as casual and extraordinary counsel of the railway company in various cases, and presents a claim upon the fund in the hands of the receiver for the balance found to be justly due him from the company on account of counsel fees in such cases. The rights of the appellant depend, as is conceded, wholly upon the provisions of the order under which the fund comes to the hands of the receiver. The first provision of the order, as to the disposition of the funds which may come to the receiver’s hands, is as follows, viz.:

“First. Any arrearages that may be due and owing for taxes and public assessments, on any of said mortgaged property, or owing to the laborers and employees of, the said consolidated corporation deféndants/or labor and services actually done in connection with that company’s railways, or to connecting roads on freight or passenger accounts in the ordinary course of business.” It. is upon this provision of the order that the appellant founds his claim, to be paid out of the fund in the hands of the receiver, and he claims that as such counsel as aforesaid, he was an “ employee ” of the company within the meaning of the order.

In this, we think, he is mistaken. The word “ employee ” is from the French, but has become somewhat naturalized in our language. Strictly and etymologically it means “a person employed ; ” but in practice in the French language, it ordinarily is used to signify a person in some official employment, and as generally used with us, though, perhaps, not confined to any official employment, it is understood to mean some permanent employment or position. Associated as it is with the word “ laborers,” and especially limited to services actually done in connection with the company’s railways, and by the rule noscitur a sociis, applied to a similar question in Aikin v. Wasson, 24 N. Y. 482, there can be little doubt that the court making the order designed to limit the operation of the word to such servants of the company as were usually engaged in the construction, operation and maintenance of the company’s railways, a class of persons, as is said by the court in Ericcson v. Brown, 38 Barb. 390, who are not well qualified to protect themselves, usually labor for a small compensation, and are deemed, to a certain extent, to be in the power of the employer. And also to those to whom the withholding of their dues, though small in individual cases, would produce a large amount of distress; and who, from ignorance of laws and legal proceedings, and moved by their common necessities and vague, but acute sense of wrong, may be led to proceedings of a riotous character, endangering the property which the interest of all concerned requires should be protected and preserved. We think it quite clear that the appellant was not designed by the order to he embraced in that class of persons therein described as “laborers and employees,” the debts due to. whom the receiver was directed to first pay.

And, accordingly, we must affirm the order disallowing the debt due to the appellant Black, as a specific claim against the fund in the hands of the receiver.

[Claim of Turquand, Youngs & Company.]

Turquand, Youngs & Co., professional accountants, in London, were employed by the railway company in auditing the accounts and keeping the books of the company in London, and reporting upon the affairs thereofj for a certain space of time, for which services there became due to them from the company a sum liquidated at $20,000. Five thousand dollars of this was paid by the company, and the balance was allowed by the referee in this proceeding. The payment of the claim of Turquand, Youngs & Co. was by the special term postponed to the claim of Naylor •& Co., and from so much of the order of the special term as allows the claim of Naylor & Co., and from so much as postpones the lien of Turquand, Youngs & Co. to that of Naylor & Co., Turquand, Youngs & Co. appeal.

As to the allowance of the claim of Naylor & Co., our views have already been expressed. We consider the order of the special term, postponing Turquand, Youngs & Co. to Naylor & Co., to be correct, for the following reasons:

' The second provision of the order, under which the fund came to the hands of the receiver, directs him to pay out of it secondly, “ Such sums as may remain actually due for materials and supplies, furnished said consolidated company defendants for the use of its railways,” not exceeding in the aggregate the amount of materials and supplies which may be delivered by the company to the receiver. The claims of Naylor & Co. come within this description, as to the first two parcels of frogs. And as to those delivered to the receiver, who by the order is authorized to operate the road, of course they are to be paid out of the fund. The claim of Turquand, Youngs & Co. is not provided for by the order, or in any way made a specific lien on the fund. The only ground upon which the claim was allowed by the referee is, that the railway company had admitted the claim, and specifically ■ appropriated its interest in the fund to its payment. The interest of the company was subordinate to the specific lien created by the order.. The postponement, therefore, so far as this fund is concerned, of the claim of Turquand, Youngs & Co. to that of Haylor & Co., seems to be in accordance with the equitable.rights of the parties.

We think, therefore, that the order appealed from should be, in all particulars, affirmed with $10 costs on each appeal, to be paid out of the fund.

Order affirmed.