Opinion
July Term, 1897.
Spalding Daring, for the appellant.
John F. Montignani, for the respondent.
The action was brought to recover thirty-three dollars and seventy-five cents, balance alleged to be due from defendant to the plaintiff upon a contract for the sale of a bicycle, and fifteen dollars and thirty-five cents for goods sold and delivered to the defendant by one Sanders, of whose property plaintiff is the receiver. The evidence was to the effect that Sanders sold the bicycle to the defendant for seventy-five dollars, to be paid in installments. Defendant paid forty-one dollars and twenty-five cents, and defaulted in further payments. The plaintiff then took possession of the wheel, and after this suit was commenced, but before the trial, sold it at private sale for ten dollars.
Sanders testified that he sold the defendant sundries, such as lamps, bells, cyclometers, etc., paid express, and made repairs to wheel, total amounting to fifteen dollars and thirty-five cents. As no objection was taken upon the trial that the express charge was paid, and the price of the repairs to defendant's wheel was included in the amount charged him for goods sold, and as Sanders' evidence was not contradicted, the variance between the pleadings and proof should have been disregarded as immaterial. The account and its amount were not disputed, and we do not see why the plaintiff should not have been permitted a recovery.
As to the bicycle, the contract for its sale was executed in duplicate, and one duplicate was delivered to the purchaser, as required by chapter 315 of the Laws of 1884, as amended by chapter 523, Laws of 1895, in case the title of the bicycle is to remain in the vendor until the payment of the purchase price. That act provides that, in case the vendor retakes the bicycle, and the purchaser does not pay the amount due thereon in thirty days thereafter, the vendor may sell the same at public auction, after giving him at least fifteen days' written notice demanding payment of the unpaid balance and expenses, and of the time and place of sale, if such payment be not made. This provision is ostensibly for the benefit of the purchaser; but if he is competent to contract, he is not thus deprived of the privilege of making the contract to suit himself. Any one can waive a statutory or even a constitutional privilege in his favor, where public policy is not thereby contravened. ( People v. Quigg, 59 N.Y. 83; Phyfe v. Eimer, 45 id. 102.) Perhaps, with respect to household goods, mentioned in the same statute, a different rule, upon grounds of public policy, should apply. ( Kneettle v. Newcomb, 22 N.Y. 249.) Here the written contract between the parties provided in effect that the vendor, upon retaking possession of the bicycle, might sell it at public or private sale, apply so much of the proceeds as should be necessary to pay the balance due upon the contract, and pay the surplus, if any, to the defendant; and that, in case of deficiency, the defendant would pay the amount thereof to the vendor.
It being competent for the parties to make such a contract, its terms should govern. It is objected that the suit was brought before the plaintiff sold the bicycle. The plaintiff sold it before the trial. When the plaintiff retook the bicycle, the defendant owed him the balance unpaid upon it, and the plaintiff held the bicycle as collateral security. The plaintiff was not obliged to sell it before his cause of action could accrue. ( De Cordova v. Barnum, 130 N.Y. 615.) But he was obliged, under the contract, to sell it in time to be able to measure upon the trial the damages due him. This he did. The fairness of the sale is not attacked.
The judgments of the County and City Courts should be reversed, with costs.
All concurred.
Judgment of the County Court and of the City Court reversed, with costs.