51 Barb. 215 | N.Y. Sup. Ct. | 1868
The complaint fails to specify any particular demands which the plaintiff paid of the debts of the old firm of Thurber, Eice & Co. It is stated in the complaint that the defendants did not perform" their agreement, but neglected to pay the debts of the old firm,
To this the defendant, among other defenses not necessary to notice, interposed a general denial.
It is in vain, therefore, to look into the pleadings for any information as to the particular debts paid by the plaintiff, or which he was liable to pay at the time of the commeneement of this action. On recurring to the testimony of the plaintiff, we have his statement that there were outstanding debts of the old firm at the time of the sale, among which he enumerates the following, viz: “ The firm owed Abram Van Horn, of Utica, June 29, 1867, $587.73.”
It will be seen that the referee allowed the plaintiff for paying a debt to Van Horn, October 9, 1866, viz. $556.88, principal, and $47.63 interest. How this could be'an out- . standing debt as early as March 24, 1865, or the same debt as that of June 29, 1867, may admit of some question; but as there is ho exception to this item, we. ought perhaps to assume that there was some evidence of its existence as early as March 24, 1865, and that the subsequent dates and amounts were only intended to indicate what the debt amounted to at these several- times.
The plaintiff also specified the following as an outstanding debt against the old firm, March 24, 1865 : “ Ira H. Cobb, Jan. 20, 1865, $400 and interest.”
There seems to be no valid objection or exception to the allowance of this claim or to the Pinckney judgment, so called. The plaintiff states that the old firm owed a debt to Pinckney, March 4, 1865, amounting to $415. There is nothing stated in the finding to show on what account the
This reduces the questions to one only, and that is in relation to what is called the “ Hotaling claim,” which the referee allowed to the plaintiff, denominating it the “ Hotaling judgment, $566, Jan. 10, 1867,” which with interest, including sheriff’s fees, amounted to $615.64, at the date of the referee’s report.
The plaintiff states in his testimony, among other outstanding debts, “ Garret Hotaling, Jan. 27,1861, for $569,” and he says he “ paid that $566 Jan. 10, 1867.” In another place he states that Hotaling had the note of the new firm. N"ext the judgment roll is produced, by which it appears that the Syracuse City Bank recovered a judgment against the members of the old firm, including the plaintiff as well as Garret Hotaling, for $467.93, November 17, 1866, upon a note purporting to have been made by Thurber, Eice & .Co. March 11, 1865, payable to the order of G. H. Hotaling at the Salt Springs Bank, sixty days after date, and indorsed by Hotaling. The plaintiff put in an answer in that suit, containing a general denial only, and the action was tried before the court without a jury, the plaintiff failing to appear. An execution was issued, and the plaintiff actually paid it January 16,1867, although by some arrangement among the parties, the execution was not satisfied. The plaintiff testified that he had no legal defense against the note, and the referee finds that neither of the defendants had notice of the suit.
The defendant, John T. Jenkins, testified that the note prosecuted by the Syracuse City Bank was given to Garret Hotaling after March 25,1865, and that he made and signed the note, and when he signed it, he notified Hotaling that
This is not strictly correct, as it appeared in the judgment roll produced on the trial, that Ira A. Thurber put in a defense under which he might have successfully defended the note, if it was executed in the name of the old firm, without his knowledge or consent, or if it was executed as the proper note of the new firm. ■
It is impossible to be satisfied with the conclusion of the referee, that this note was intended to be the note of the new firm instead of the old one, for it is dated back to tlie time of the existence of the old firm, which is hardly reconcilable with the conclusion that it was intended to be the note of the new firm. But -in neither aspect of the ease would the surety of John T. Jenkins be liable to the plaintiff upon he note in question. It is not enough to be able to show that Jenkins has made himself tiable upon the note by assuming to execute it on behalf of the new firm.
The surety is only bound to pay it while it remains the proper debt of the old firm. If it was accepted by Hotal
If the plaintiff assented to this arrangement, in either form, and Corbin did not know of it, or assent to it on his part, then I am of opinion that, he thereby discharged Corbin from his obligation to pay it. If the plaintiff did not" know of it, or assent to it in either form, then he should have interposed his defense, or at least have notified Corbin that he had a good and sufficient defense to the note so that Corbin might have had the benefit of it in that suit.
There is-only one aspect of the case in which the defendant Corbin could be made liable for the demand secured by the new note in question, and that was for Hotaling to surrender the same upon grounds' which would have authorized him to recover' upon the original indebtedness.
The defendant Corbin never undertook to pay any thing else. As it is now too late to -repudiate the new note and
Foster, Mullin and Morgan, Justices.]
It is to be regretted that there should be so much confusion and uncertainty in cases which come before us for review. There is no statement in the pleadings which would enable the court to see what demands the plaintiff expects to recover; and the findings of the referee which are generally drawn up by the successful party, fail to point out the grounds upon which the Hotaling debt, so called, was allowed.
I have examined the evidence and findings with as much care as I could, and have stated the results, I believe, with entire fidelity to the facts as they appear in the case. The result is, that the judgment is erroneous in the particulars above mentioned, and should be reduced accordingly; or if the plaintiff will not consent to modify it, then a new trial should be granted, with costs to abide the event.
In .case of a modification by deducting the amount of the Hotaling debt, so called, the judgment as thus modified should be affirmed, without costs of appeal to either party.
Ordered accordingly.