139 N.Y.S. 811 | N.Y. App. Div. | 1913
Lead Opinion
There was no substantial dispute as to the facts. At the end of the trial both parties moved for the direction of a verdict. The court denied the plaintiff’s motion for the direction of a verdict in favor of the plaintiff and granted a motion directing a verdict for the defendants, to which the plaintiff excepted, and ordered the exceptions to be heard in the first instance by this court.
■ Kessler & Co., the bankrupts, were bankers doing business in the city of New York and the defendants were engaged in business in New York and Germany. • Mr. Gabriel Fensterer, one of the defendants, was in Germany and carried on business there in connection with the business carried on by his firm in New York, the business of the defendants’ firm being transacted in New York by Mr. Euhe, the other member of the copartnership. There was a firm of Leffler, Thiele & Go,, with whom the defendants had business transactions in Germany. The bankrupts failed on October 30, 1907, and on that day made a general assignment for the benefit of creditors. On November 8, 1907, a petition in involuntary bankruptcy was filed against the bankrupts and they were subsequently adjudicated bankrupts and the plaintiff was appointed trustee. There was also a firm doing business in Berlin, in the empire of Germany, under the firm name of Delbruck, Leo & Go. For a number of years prior to April, 1906, there had been what was called a credit arrangement between the bankrupts and the defendants which had for its object the giving of defendants credit in Germany in their financial transactions there, and on April 9, 1906, to continue this- arrangement the defendants
It thus appears that in the arrangement between the defendants and the bankrupt firm of Kessler & Co. the defendants guaranteed the payment of any drafts drawn by our Mr. G. Fensterer in Europe, and upon that guaranty Kessler & Co. requested Delbruck, Leo & Co. to pay the ninety-day sight drafts of Mr. G. Fensterer and to debit Kesslér & Co. therefor. Under this guaranty no obligation of defendants existed until Delbruck, Leo & Co. had paid the drafts drawn' by G. Fensterer. So far as appears by the arrangement there was no
The exceptions are, therefore, overruled, and judgment, ordered for the defendants on the verdict, with costs.
Laughlin, Miller and -Dowling, JJ., concurred; McLaughlin, J., dissented.
Dissenting Opinion
The defendants agreed with Kessler & Go. that if it. would procure the acceptance in Germany of drafts drawn for the benefit of Leffler, Thiele & Co., they would pay to Kessler & Co. the amount of each draft prior to the time the same fell due, and in addition certain commissions. The drafts were to be drawn by Gabriel Fensterer, acting as the agent of Leffler, Thiele & Co. In pursuance of this agreement Kessler & Co. procured the drafts here under consideration to be accepted by Delbruck, Leo & Co. Prior to the acceptance, Delbruck, Leo & Co. agreed with Kessler & Co.— not with the defendants — to accept and pay the drafts for the account and to the debit of Kessler & Co., and it was under this arrangement that the drafts were accepted and in each instance charged to Kessler & Co.The defendants made no contract, either express or implied, with Delbruck, Leo & Co., and were not known in the transactions, so far as appears, until after Kessler & Co. became bankrupts. In each instance, as soon "as Delbruck, Leo & Co. accepted a draft, they charged the amount of it, not to the defendants, but to Kessler & Co., plus their commissions, and on receiving a remittance from them credited same in general account. When a draft was paid, Delbruck, Leo & Co. charged interest to Kessler & Co. on the amount of the acceptance and credited Kessler & Co. with interest on their remittances, and all the items were settled in general account between Delbruck, Leo & Co. and Kessler & Co. every six months. Whenever a draft was accepted, Delbruck, Leo & Co. wrote a letter to Kessler & Co. advising them that the draft had been drawn “for your account,” and that they had accepted it “to your debit for payment on account ordinario ” — that is, general account. Kessler & Co., on receiving from Delbruck,. Leo & Co. advice of an acceptance, credited it with the amount and immediately notified the defendants of the acceptance, stating the amount of the draft, the due date, and concluding with the words, “Note that the same is to be covered,” that is, paid to us, “by you 15 days before maturity.”
The correspondence and the acts of the parties prior to the failure of Kessler & Co. indicate, as it seems to me, an intention on the part of all the parties that1 Kessler & Co. alone
For these reasons I am unable to concur in the prevailing opinion. I am of the opinion that the exceptions should be sustained and a new trial ordered.
Exceptions overruled and judgment ordered for defendants pu the verdict, with costs. Order to be settled on nontn