38 N.Y.S. 1032 | N.Y. App. Div. | 1896
This is an appeal from a judgment entered in favor of the defendant upon a dismissal of the plaintiff’s complaint on a trial of the issues at the Circuit. The action was brought to recover damages
It appeared by the testimony of the plaintiff at the trial, that in the negotiation of this $50,000 loan, Mr. Van Siclen, an officer of the defendant, acted for it, and that the plaintiff stated to Mr. Van Siclen all the circumstances of his connection with the property, and settled with him the terms upon which the $50,000 was to be advanced, and also informed him of the contract for the resale of the premises, and that as a consequence of the interview, a paper signed by Mr. Van Siclen on behalf ox the defendant was delivered to the plaintiff in the following words:
“ J. G. Goldsmith, Esq.,
Dear Sir — Ye will lend you the fifty thousand dollars on 92- — 100 Cannon street; note with B. & M. & Title Guarantee Policy collateral.”
The plaintiff further testified that at the request and upon the insistancy of Mr. Van Siclen, he went to the Title Guarantee Company and made an agreement with it concerning the searching of’ the title, and informed Mr. Van Siclen of what he had done; that, on the 1st day of October, 1889, he called upon Air. Van Siclen at the office of the defendant, when a promissory note was handed to-him by Air. Van Siclen to be signed, Van Siclen saying, “ Sign this; * * * that is all right; that is your note for fifty thousand dollars for the loan; ” that thereupon he signed a note for $50,000, dated New York, October 1, 1889, payable on demand to the Holland Trust Company, or order, with interest at the rate of six per cent, with one per cent commission, and which recites that he deposited with the trust company as collateral security for the payment of the note, and also of all other present or future demands of any kind of the defendant against him, certain property to be referred to in a-memorandum to be kept with the note. He further testifies that at that time, and at the procurement of Van Siclen, he also executed other papers connected with the transaction, and drew a check for-$500 for the one per cent commission. He also swore that he paid.
At the close of .the plaintiff’s case, the learned judge at Circuit dismissed the complaint on the ground that no cause of action accrued to the plaintiff as a borrower, because the contract he had made with the defendant was one to obtain a loan payable on demand, and an exception was duly taken to that ruling.
We are not disposed to question the general proposition that where a contract is made for a loan of money which may instantly be demanded, a borrower would not be entitled to recover substantial damages for the breach of such a contract, for the very condition of such a loan would seem to imply that the borrower was not to have the use of the money for any fixed purpose or for any specified time, and the contract would be terminable at once at the pleasure of the lender.
In Bradford, etc., R. R. Co. v. N. Y., L. E. & W. R. R. Co. (123 N. Y. 316), among other things, it is remarked that it must be a rare case indeed, -where it can be said that a person has sustained any damages by the refusal of another to advance money which he has agreed to advance, and where the person to whom it is to be advanced is under a valid obligation to pay it back immediately.
Van Brunt, P. J., Williams, O’Brien and Ingraham, JJ., concurred.
Judgment reversed and new trial ordered, costs to appellant to-abide event.