141 N.Y.S. 287 | N.Y. App. Div. | 1913
The plaintiff sues as assignee of one Nathanson, and the only question involved is as to the allowance of a counterclaim in favor of defendants. The defendants and Nathanson did business together under a written contract, whereby defendants agreed to consign to Nathanson from time to time what is
On October 21, 1910, plaintiff and the defendant Bernard Bernstein had a conversation respecting the bills ■ against defendants then held by plaintiff. These parties differ radically as to what took place at that interview, but as the jury by their verdict indicate that they believed the plaintiff, we shall assume that his version is correct." He testified that he then held bills against defendants amounting to $1,877, and that he told Bernstein that he did not care to extend further credits to defendants. Bernstein said that Nathanson" had on hand some finished silk which defendants much desired to receive, and proceeded to convince plaintiff that their financial standing entitled them to more credit. The witness said: “I then told him that I would extend him a credit up—to owe
Bernstein did not inform plaintiff at the interview of October twenty-first that he held a counter charge against Hathanson exceeding the amount of defendants’ apparent indebtedness to Hathanson, nor was the plaintiff apparently aware of that fact.
The case was sent to the jury with, a charge that if the conversation between plaintiff and Bernstein was as was testified to by the latter, then plaintiff was entitled to recover the whole amount of his claim, because the agreement of plaintiff to permit Hathanson to make further shipments to defendants furnished a sufficient consideration for what was deemed to be defendants’ new promise to pay the plaintiff the full amount of his claim. We.are of opinion that this instruction was erroneous. Under the agreement between defendants and H athanson the former held at all. times the actual ownership of and title to the silks, ;and was absolutely entitled to receive them as soon as finished. 'It was no concession to defendants to “permit” Hathanson to deliver their own property to them, and, therefore, no consideration passed from plaintiff to defendants for any new or independent promise to pay plaintiff the apparent claims against them which he then held.
The plaintiff relies, however, upon a well-established rule that under certain circumstances a party will be estopped from asserting, as a defense to a claim against, him,- a counterclaim
When Bernstein had his interview with plaintiff on October 21, 1910, and asked plaintiff to make it possible for Nathanson to ship more goods, he must have known that in consenting to do so the plaintiff relied upon collecting the bills for such goods from "defendants. It was Bernstein’s duty then, in good faith, to have informed plaintiff of the relations between his firm and Nathanson and the state of the accounts between them. Having failed in this duty, and by his silence induced plaintiff to increase the amount of his investment in Nathan - son’s bills against defendants, the latter cannot now offset against the advances made after that conversation any counterclaim they may have against Nathanson. This rule does not, however, apply to the $1,877 advanced before the conversation because that advance was not made in reliance upon anything defendants had done or neglected to do. The judgment and order appealed from must, therefore, be reversed and a new trial granted, with costs to appellant to abide the event, unless plaintiff stipulates to reduce the recovery to the sum of $1,016.51, with interest from January 3, 1911, in which case the judgment as so reduced and modified will be affirmed, without costs to either party.
Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulates to reduce recovery to $1,016.51, with interest from January 3, 1911, in which event judgment as so modified and order affirmed, without costs. Order to be settled on notice.