23 N.Y.S. 778 | New York Court of Common Pleas | 1893
The complaint was upon defendants’ implied promise to pay $1,000, alleged to have been had and received by them to plaintiff’s use; and the answer denied the receipt of the money. On the trial it appeared affirmatively from the testimony of both defendants that neither of them had in fact received any money whatever for the plaintiff, and this was left unchallenged, unless the remaining facts in evidence justify an inference of its receipt. Defendants had entered into a building loan agreement with one George J. Hamilton, pursuant to which the former were to advance the latter a specified sum of money in installments. Hamilton was indebted to plaintiff in $1,000, and issued to him two several orders on defendants, each for $500, which the latter accepted, one “payable when the eleventh (11th) payment becomes due and payable, according to terms of builders’ loan contract on premises 2T. E. corner 90th Str. & 10th Ave.,” and the other “payable when last payment becomes due and payable” according to the terms of the said contract. Some time after the acceptance of these orders by defendants they were asked to pay the several amounts thereof, which they refused to do unless plaintiff would consent to release a certain bond and mortgage for $1,300 held by him against Hamilton, and which defendants claimed at the time operated, in a manner left to our conjecture, to prevent Hamilton from proceeding with work as a builder. Both parties having asked the court to direct a verdict, such a direction was made in plaintiff’s favor.
We are of the opinion that defendants’ motion should have been granted, or the complaint dismissed. Defendants’ refusal to pay unless plaintiff would release Hamilton’s bond and mortgage did not authorize an inference that the installments to become due from defendants under their building loan agreement had matured;