26 Misc. 11 | N.Y. App. Term. | 1899
The written complaint substantially alleges that on or about February 5, 1898, the defendant, in consideration of the transfer to him by the plaintiff of certain shares of slock in the Schneider-Birkenstock Marble Company, and of all the plaintiff’s rights and interests in said corporation, promised and agreed to pay, among others, two certain claims, belonging to William Schneider and Charles Schneider, Jr., respectively, for $100 each against the said company, and the assignee thereof; that the said claims were then and there admitted by the parties litigant to be just and to be due and owing; that prior to the commencement of this action, such claims were assigned to the plaintiff, of which assignment the defendant had notice, and that the said claims remain unpaid.
The answer is substantially a general denial. It is undisputed that on February 1, 1898, the plaintiff and one J. W. Birkenstock, representing the firm of Curtell Brothers & Company, of which firm the defendant was a member, entered into an agreement in writing for the sale and delivery within four days of all the capital stock of the above-mentioned company not standing in the name of said Birkenstock, a judgment the latter had recovered against the said corporation, and all his right,'title and interest in the said company, for the sum of $10,000, of which $1,000' was paid upon the signing of the agreement and the balance to be payable upon the delivery of the bill of sale, it being stipulated that the money so paid should be forfeited in case of the nonpayment of the remainder of the purchase money.
The defendant called one John H. Johnston, as a witness, who testified that he heard some discussion between the parties in regard to the claims, but did not hear whether they were allowed or not.
Upon the close of all the evidence, the defendant renewed the motion made when the plaintiff rested for a dismissal of the complaint, upon the ground, among others, that there was no consideration for the alleged promise of the defendant to pay the claims in suit, but this was denied and judgment was given for the plaintiff. It is obvious that such determination was due to a misconception of the law. The plaintiff was legally bound to sign and deliver the bill of sale in conformity with the agreement theretofore made with Birkenstock, who was present at said meeting between the parties on said February 5th, and assented to its delivery to the defendant, and hence the plaintiff could not impose any condition whatever to its performance. The proof shows that the defendant received no other consideration than that mentioned in the said instrument, and as the plaintiff was under a legal obligation to perform such contract, said alleged promise was nudum pactum. Robinson v. Jewett, 116 N. Y. 40; Arend v. Smith, 151 id. 502.
It logically follows from these views that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Beekman, P. J., and Gildersleeve, J., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.