87 N.Y.S. 530 | N.Y. App. Div. | 1904
The plaintiff is the daughter and sole heir at law and next of kin of her intestate. The action is brought to recover damages 'for the breach of a contract under seal. The contract was made on or about July 21, 1900, under the following circumstances: On and prior to June 9, 1900, the defendants’ intestate and Thomas J. Flagg were copartners, doing business- under the firm name of Fisk, Clarke & Flagg. On June 9, 1900, Thomas J. Flagg died, leaving him surviving the plaintiff, his widow; Emily Lee Flagg, his daughter, and Mortimer Kennedy Flagg, his son, his only heirs at law and next of
The answer put in issue by several denials the execution of the contract its breach and other matters. For affirmative defenses it averred payment, usury, the Statute of Limitations and that nothing had become due by virtue of the contract, for the reason that it was not made to-appear that all of the creditors of Fisk, Clarke & Flagg had been fully paid and discharged and that three ■ months had
It appears from the testimony that Mrs. Kennedy did not execute the contract. It was executed upon her behalf by. Mrs. Flagg, who was at the time attending to her matters and it was executed pursuant to the advice of their attorney, who was acting for Mrs'.' Kennedy and Mrs. Flagg, and was accepted by Fisk, the purchaser, as satisfactory to him under the advice of counsel. We are of opinion that the contract inured to the benefit of Mrs. Kennedy and may be enforced by her as one made for her benefit, and that the plaintiff, as her representative, has legal capacity to enforce such right. Mrs. Flagg was the personal representative of her husband, who was formerly a member of the firm of Fisk, Clarke & Flagg. Such firm was liable for the debts which it owed, among which was that of Mrs. Kennedy, and the estate of Flagg, deceased, might in the event of the failure of partnership assets become liable for the whole amount. Mrs. Flagg, therefore, had a direct interest in having this claim paid in order that the interest - possessed by her .husband in the firm’s assets might be relieved from this charge and also that his estate might.not become chargeable with its payment. An obligation and duty, therefore, rested upon her to provide for the payment of the claim. The relation which existed between Mrs. Kennedy and Mrs. Flagg was that of mother and daughter, and Mrs. Flagg is the sole heir at law and next of kin of .her motilen It was the contract which provided for the payment of the debt; therefore, it was for the direct pecuniary interest and advantage of Mrs. Flagg, both as related to the liabilities of her deceased husband and of her interest in the estate of her mother and the natural obligation which she was under to her. The relation which existed was, I think, sufficient to support the contract to pay the debt of Mrs. Kennedy and also her right to enforce it. (Todd v. Weber, 95 N. Y. 181; Buchanan v. Tilden, 158 id. 109.) It was to the direct pecuniary benefit of Mrs. Kennedy to secure payment of her debt. The consideration which moved from her daughter to the surviving member of the firm affected in a marked degree the security for the payment of her claim. She had a direct personal interest therein and in the property of the firm, as it was the source of security for
Nor was the failure to show that there were no outstanding creditors of the firm of Fisk, Clarke & Flagg remaining unpaid at the time of the commencement of the action an answer thereto. The defendants were in no position to take advantage of such fact, if it be admitted to exist. They had repudiated the contract as void, and refused to recognize it ás a subsisting. liability which they were bound to discharge; consequently, they cannot repudiate the contract and then take advantage of a clause they might have insisted upon had they fulfilled its terms. The court is not now concerned with the rights of creditors as against the claim herd asserted. The debt and its amount was established to exist from the ledger of the firm, independent of its recognition in the contract, and the offer of all of the books of the firm in evidence by the defendants was, therefore, properly excluded. Flo item was pointed out in the offer which showed that it had any bearing upon the amount, or which would contradict the ledger account; nor was it otherwise pointed out wherein, or how, any items contained therein would tend to defeat plaintiff’s claim.
The judgment entered thereon should, therefore, be affirmed, with costs.
Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.
Judgment affirmed, with costs.