136 N.Y.S. 371 | N.Y. App. Div. | 1912
Lead Opinion
The action is to recover upon five promissory notes, the first dated May 11, 1904, by which, on demand, the defendant promised to pay to the order of the plaintiff $4,000, at No. 71 Broadway, New York, with interest at six per cent; the second dated New York, June 14, 19Ó4, by which, on demand after date, the defendant promised to pay to the order of the plaintiff $4,000, at No. 71 Broadway, with interest at six per cent; the third dated June 14, 1905, by which, on demand, the defendant promised to pay to the order of the plaintiff $1,000, at No. 71 Broadway,. New York; the fourth dated August 30, 1905, by which the defendant, on demand, promised to pay to the
On the trial the plaintiff introduced these notes in evidence and also introduced in evidence a check drawn by the plaintiff to the order of the defendant dated in each case the day the . notes were dated and which were, indorsed by the defendant and paid to him. The plaintiff called as a witness his private secretary who testified that the plaintiff instructed him to make out a note for defendant’s signature and make out the check produced in exchange for the note when signed by the defendant; that he gave the check to the defendant and the defendant signed the note and delivered it to the witness. The plaintiff then introduced a letter from the defendant ‘to the plaintiff dated May 11, 1904, the date of the first note. This letter, addressed to the plaintiff, is as follows: “ I enclose my note for $4,000. So that your interests may be protected, and in order that the relations existing between us maybe in written form in case of the death of either of us, I herewith state that this and such future loans as you may make me are for the purpose of assisting me in perfecting the invention known as the Typo-telegraph, and in which you are to become interested in the formation of the company. The advances are made to me pending the forma
This action was commenced on December 20, 1910. The notes on then face require the absolute payment of a sum of money on demand. The written undertaking of the defendant delivered to the plaintiff at the time the first note was given recognized that the money paid by the plaintiff to the defendant which these notes represented were loans made by the plaintiff to the defendant; that the advances were made to the defendant pending the formation of a corporation or the sale of the invention, and the defendant bound himself to repay the amount of the advances to the plaintiff out of the first money that he received upon the formation of the said company or sale of the invention. - There was no agreement, however, express or implied, that the notes should not be payable before the formation of the company or the sale of the invention, nor did the defendant testify that there was any such agreement; on the contrary, the letter itself states that the advances were made to the defendant personally, and defendant bound himself for the payment of the notes in case of a failure to dispose of the invention as stated, and these advances were irrespective of such interest as the plaintiff may acquire in the invention by participation in the formation of said company or said sale. There is nothing in this letter nor in the understanding between the parties as to which there is any testimony that would prevent the plaintiff from calling on the defendant at any time for the repayment of the advances represented by these notes. By making these advances the plaintiff acquired no interest in the invention and no right to any part of the profits that the defendant could secure by either the formation of the company or the sale of the invention. The plaintiff’s interest was evidently to be determined by a further agreement between the parties. There was no postponement, therefore, of the right of the plaintiff to demand at any time the payment of these notes, and nothing in the testimony to justify a finding that the obligation of the defendant
It follows, therefore, that the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event, unless the plaintiff stipulates to reduce the judgment by deducting the sum of $8,000 and interest thereon from the amount of the verdict as directed, and in case of the plaintiff so stipulating the judgment be modified accordingly, and as modified affirmed, without costs.
McLaughlin, Miller and Dowling, JJ., concurred; Laughlin, J., dissented.
Dissenting Opinion
I dissent from the affirmance of the judgment, as modified if the stipulation for reduction be given and vote for unconditional reversal.
Judgment reversed and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulates to reduce the judgment by deducting $8,000 and interest from the amount of the verdict, in which event, judgment as so modified affirmed, without costs. Order to be settled on notice.