48 N.Y.S. 318 | N.Y. App. Div. | 1897
The action was to recover upon a promissory note made by the defendant. The defendant, in his answer, set up a counterclaim alleging an agreement by which the Shepard & Morse Lumber Company, plaintiff’s assignor, was to settle a certain action against the defendant in the State of New Jersey, and discontinue such action and vacate an attachment proceeding in it in New Jersey, the defendant to give to the plaintiff security for the payment of the amount claimed in that suit; that the defendant performed this agreement upon his part, but that the plaintiff failed to discharge the attachment and discontinue the action, but proceeded under process issued therein to sell the defendant’s property, by which the defendant sustained damage to the amount of $4,000; and the defendant seeks to offset such damage against the amount due to the plaintiff, who held the note in suit by assignment from the party to the agreement upon which the counterclaim was based. The plaintiff was the agent and representative of the Shepard & Morse Lumber Company, who were- the owners of the note at the time of the agreement between said corporation and the defendant. The plaintiff replied to this counterclaim by a denial. The action was brought on for trial before the court without a jury, who found that such an agreement was made and was fully performed by the defendant on his part, that the property levied upon and sold by the plaintiff’s assignor was actually worth about $6,000, subject to a mortgage for $2,000, but that the same was sold upon the sheriff’s sale for $1,700, and that such sale resulted in a direct pecuniary loss to the defendant of about $2,300, being $800 more than the indebtedness sued on; that this breach of the obligation of the Shepard & Morse Lumber Company was a good counterclaim or set-off against the amount sued for in this action; that the agreement was founded upon a good consideration, and that the damages naturally and directly flowing from the breach were the difference between the actual value of the property and what it realized at the sheriff’s sale; and that, as the difference amounts to more than the plaintiff’s' demand, the defendant was entitled to a judgment in his favor against the plaintiff. The defendant assumed the affirmative upon the trial and gave evidence tending to show the making of the agreement, his executing the mortgage and bill- of sale, and trans
We can see no reason why this was not a valid contract for a breach of which the plaintiff’s assignor was liable. The plaintiff’s assignor had sued 'the defendant in- the State of New Jersey and had obtained, an attachment upon his property. The agreement contemplated a transfer of the personal property of the defendant upon which such attachment had been levied to the plaintiff’s assignor, a mortgage upon certain real estate held, by the defendant in the State of New Jersey, which mortgage was to be executed by the defendant and his wife to secure the defendant’s indebtedness to the plaintiff’s assignor, and, upon the execution of such instrument, the discontinuance of the action against the'defendant, the discharge of the attachment, the satisfaction of the claim of plaintiff’s assignor from the proceeds of the personal property, and the delivery of the mortgage upon real estate to be held as security for the payment of the balance of such indebtedness. There was certainly a good consideration for the agreement of the plaintiff to discontinue the action against the defendant and to- release the property from the levy under the attachment. This' agreement was violated by the plaintiff’s assignor, which resulted in the sacrifice of the -defendant’s property at a sum much less than its real value.
We also think • that, upon a breach of such an agreement, the
The exceptions taken upon the trial do not appear to be relied upon by. the plaintiff, and do not require notice. . .
I think the judgment was right and should be affirmed, with costs.
Van Brunt, P. J.,' Williams, Patterson and O’Brien, JJ., concurred.
Judgment affirmed, with "costs.