111 N.Y.S. 657 | N.Y. App. Term. | 1908
Lead Opinion
The plaintiffs sold and delivered goods to the defendant and received payment of the principal of the
The judgment is affirmed, with costs.
Gildersleeve, J., concurs.
Dissenting Opinion
The plaintiffs brought this action to recover a sum certain as interest expressly agreed to be paid, as alleged, according to a contract for the purchase and sale of goods. The plaintiffs concede payment of the principal sum. The testimony of the senior partner of the vendor firm is very distinct that when the contract was entered into the “terms stated were cash in thirty days, thirty days from time of delivery,” but of interest as a constituent part of their contract there is no evidence. Subsequent promises, oral or written, to the plaintiffs to pay interest upon an adjustment and settlement of accounts are not to be spelled retroactively into the terms of the contracts of purchase and sale; neither are they to be enforced as after promises, because they rest upon no consideration. Ho interest appearing other than as mere incident, the receipt and acceptance of the principal sum extinguished the right to
The judgment herein in favor of the plaintiffs should, therefore, be reversed.
Judgment affirmed, with costs.