185 A.D. 473 | N.Y. App. Div. | 1918
Lead Opinion
The action was • to recover on six promissory notes for $100 each, made by the defendant Mendel M. Pine, in his trade name, to the order of the plaintiff, and indorsed by the other four defendants.
There is practically no dispute as to the facts in the case.
At the trial the first cause of action was withdrawn. The learned justice dismissed the complaint on the ground that there
The agreement was entirely parol. The parties to the negotiation had been dealing with each other for years and a definite credit had been established and was well understood by both parties. For this reason it was unnecessary that the details thereof should have been repeated at the time of the making of the contract. That this was true is demonstrated by the fact that they dealt with each other pursuant to the terms thereof for twenty-two months, until the defendants failed to pay notes that had been given for merchandise purchased. During this period there is no evidence of dissatisfaction on the part of the defendants with the credit established. The learned counsel for the respondents contends that if, after the giving of the notes in suit, the plaintiff had refused to extend credit, the agreement could not have been enforced; hence there was a lack of mutuality in the obligation. To the extent that equity would not decree specific performance of the contract, this is true. The reason for that, however, would be because the defendants would have an adequate remedy at law either in defense to an action upon the notes or for damages. It would be entirely competent for the defendants to show what credit had theretofore been extended, and thus make the obligations of the party clear. The plaintiff did not clearly prove that these notes were accepted in payment of the pre-existing debt of the Century Gas and Electric Fixture Company, and that company released from its obligation. There is testimony from which it appears that such might have been the case. If this was the fact, that in itself would be a sufficient consideration for the notes.
The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
Clarke, P. J., Smith and Shearn, JJ., concurred; Dowling, J., dissented.
Dissenting Opinion
I believe that the dismissal of the complaint below was correct. The ground assigned was that the sole consideration
I am of opinion that the judgment appealed from should be affirmed, with costs.
Judgment reversed and new trial ordered, with costs to appellant to abide event.