134 N.Y.S. 523 | N.Y. App. Term. | 1912
This case turns upon the construction of written instruments. Plaintiff assigned to defendant for $100 an option on cer
“In consideration of your having assigned to me, and placed in escrow with Mr. Charles C. Gill, the Smith carburetor patents for England, Germany, Austria, Belgium, France, and Italy, for a period of six months, at a net price of $10,000, I hereby agree to pay over to you, if a sale is made by me of any or all of said patents, one-third of the cash profit from such sale as and when received by me.”
Thereafter defendant sold the option, though not the patents, to a third party for $1,000. Plaintiff claims that this was a mere evasion of the terms of the letter, and that he is entitled to his share of $900, being defendant’s personal profit on the transaction. Defendant insists that there is no evidence that plaintiff complied! with the terms of the letter by causing an assignment of the patents to be placed in escrow as therein provided. It appears, however, on the contrary, that such an assignment was made and executed prior to the writing of the letter, and that the phrase in the letter relating to that matter referred, not to a future, but to a past, act.
Under these circumstances, however, it is quite clear that there was •no consideration for defendant’s promise in the letter, and the judgment for the plaintiff must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.
