Hunter v. Wetsell 24 N.Y. Sup. Ct. 135

RICHARD L. HUNTER and ANDREW HUNTER, as Executors, etc., of RICHARD HUNTER, Deceased, Respondents, v. ISAAC D. WETSELL, JOHN VAN O’LINDA and JOHN QUACKENBUSH, Appellants.

Payment by cheek — taking a contract out of the statute of frauds.

Appeal from a judgment in favor of tbe plaintiffs, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

The action was to recover the purchase-price of a quantity of hops, alleged to have been purchased by defendants of plaintiffs’ testator.

The court at General Term said : “Assuming as we must that the law of this case was properly laid down by the Commission of Appeals, when it was before that court (57 N. Y., 375), the plaintiffs have obviated the objections then taken by the new evidence now offered. It now appears that the contract was complete between the parties when the $200 was paid. By that contract the quantity of hops was fixed at 2,370 pounds, the price at fifty cents per pound and ten dollars in addition. The defendants were to go out and take the hops away the next week, and $200 were paid towards the purchase-price. So the jury has found ujion competent evidence and the evidence is conclusive, as to the fact upon this court. So the contract is not void by the statute of frauds.

‘1 The payment was by the check of defendants. It is now claimed that a payment by check, which is afterwards presented to the bank on which it is drawn and paid, is not a payment at the time of making of the contract, within the statute of frauds. No authority to sustain this proposition is citied, and we cannot yield to it our assent. Undoubtedly the giving of a check is not absolute payment, but when it is received as such, and is afterwards paid as in this case, it becomes a good and valid payment as of the time when it was given. Such is the universal custom and usage, and *136any different rule would greatly embarrass trade and commerce. (Gould v. Town of Oneonta, 71 N. Y., 307.)”

J. II. Glute, for tbe appellants. F. W Paige, for tbe respondents.