42 N.Y. 316 | NY | 1870
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *318
While the evidence in this case is not as satisfactory as could be wished, yet, under the rules applicable to appeals in this court, it must be considered as established that, in the fall of 1864, Benjamin Chamberlain agreed to pay the plaintiff $2,000 for his interest in the property of the "Luna Lumber Company," and that subsequently the testator, Samuel W. Bradley, upon a consideration passing between him and Chamberlain, promised to pay the $2,000 to the plaintiff. Upon such a state of facts, I think there can be no doubt of the plaintiff's right to recover. (Barker v. Bucklin, 2 Denio, 45; Lawrence v. Fox,
I therefore, reach the conclusion, that the judgment should be affirmed.
Concurrence Opinion
The Luna Lumber Company, a partnership firm consisting of the plaintiff, Anthony Fay, David Harrower, and the testator, Samuel W. Bradley, failed, and the property of the firm passed into the hands of Benjamin Chamberlain, who was a creditor of the firm. Chamberlain applied to the plaintiff to release his interest in the property, and offered to pay the plaintiff $2,000 and indemnify him against *321 liability for the debts of the company; which offer was accepted by the plaintiff, and the following instruments were executed by the parties respectively:
"Received, East Randolph, February 4, 1865, of B. Chamberlain, one dollar in full of all demands; also, in full of all demands against the Luna Lumber Company, and all the members thereof, which demands I assign to B. Chamberlain without recourse to me.
"BENJAMIN BARKER." _ _ | 5 cent Revenue | | stamp affixed and canceled. | — —
"Received, East Randolph, February 4, 1865, of Benjamin Barker one dollar in full of all demands, and I am to clear him of all liability on account of the Luna Lumber Company, together with all notes and papers taken up against said company by me.
"B. CHAMBERLAIN." _ _ | U.S. | | stamp canceled. | — —
The $2,000 was not paid. In 1867 a final settlement was made between Chamberlain and Samuel W. Bradley, and the property of the company, to the value of about $250,000, held by Chamberlain, as the evidence pretty clearly shows, as the agent of Bradley, or in some other capacity for his benefit, was transferred by Chamberlain to Bradley; and at the time of such transfer the claim of Barker for the $,2000 was discussed, and Chamberlain proposed to retain it out of the fund, but Bradley declined to have it retained by Chamberlain and promised to pay the same to Barker. Such was, in substance, the arrangement. I perceive no substantial reason why Bradley did not render himself liable to Barker for the $2,000. If Chamberlain acted as the agent of Bradley in making the arrangement with Barker, the unqualified recognition of his acts by Bradley, at the time of the transfer of the property to him, amounted to a ratification of the acts of Chamberlain and rendered Bradley clearly liable. If, on the other hand, Chamberlain was not to be regarded as the agent of Bradley, then the latter became liable to pay Barker in consequence of receiving of Chamberlain the property, coupled *322
with a promise on the part of Bradley to pay Barker the money. The effect of such transaction was to create a cause of action in favor of Barker against Bradley for the money which Chamberlain placed in his hands for the benefit of Barker, and which Bradley agreed to pay to Barker. (Burr v. Beers,
All concur for affirmance, except SUTHERLAND, J.
Judgment affirmed.