40 Barb. 225 | N.Y. Sup. Ct. | 1862
It seems to me difficult, upon the facts found by the referee, to sustain his conclusion that the defendant Wadhams is personally liable for the amount unpaid on the contract between his co-defendant Green and Abner Adams. He finds, simply, that in April, 1855, Wadhams took from Green an assignment of his interest in the contract, and thereupon entered into and continues in possession of the premises. He does not find that Wadhams agreed to pay the moneys thereafter to become due on the contract; and without an agreement to that effect, express
But on looking into the evidence, it appears that by the terms of the written agreement by which Green assigned his interest in the contract to Wadhams, the latter expressly agreed to assume the payment of a claim of $312 and interest from the 1st day of January, 1855, to the heirs of Abner Adams.” It is perhaps fairly to be presumed that the “ claim” thus referred to, was the purchase money unpaid upon the contract, as it does not appear that Green was otherwise indebted to Adams or his heirs. Upon this promise the plaintiffs, who are the sons of Abner Adams and for aught that appears his only heirs, may maintain an action against Wadhams. (Lawrence v. Fox, 20 N. Y. Rep. 268. Burr v. Beers, 24 id. 178.) Their right to recover is limited, however, to the amount which Wadhams agreed to pay, and from that should be deducted all payments which he has .since made thereon, or upon the judgment which was proved before the referee. Thus modified, I think the judgment below should be allowed to stand; but unless the plaintiffs consent to reduce it in accordance with the foregoing directions, it should be reversed, so far as it charges Wadhams personally, and as to him there should be a new trial.
The plaintiff’s right of action, to this extent, is not affected by the judgment recovered by the executor of Adams against Wadhams, for the reason that at the time when the suit was commenced in which that judgment was obtained, the last instalment, which is all that the plaintiff now claims to recover', had not become due, and therefore was not merged in the.judgment. The judgment, which was taken by default, was unintentionally docketed for a larger sum than was due when the suit was commenced, but the error was afterwards rectified by mutual consent; the defendant paid the correct amount, and the judgment was discharged by the return of an execution satisfied in full. I see no valid legal objection
As the contract expressly provides that all payments shall be made previously to the execution of a deed, it was not necessary for the plaintiffs to convey, or offer to convey, before bringing suit.
Ordered, that judgment be reversed, unless the plaintiffs consent to reduce it in accordance with the above directions.
Johnson, J. C. Smith and Welles, Justices.l
