19 N.Y.S. 696 | City of New York Municipal Court | 1892
This action was brought to recover the sum of $1,403 and
interest alleged to be due to plaintiff’s assignor, Eugene Ring, Jr., as set forth in the complaint, which, briefly stated, alleges: That about February 26, 1891, defendant Halsey and Eugene Ring, Jr., were partners under the name of George W. Halsey & Co. That on said day defendant Broadhead purchased from Ring his interest in the property of the firm for $2,500, but, instead of paying the same in money, it was agreed between Halsey, Broad-head, and Ring that the $2,500 should be paid to Ring,—$1,097 thereof by the transfer to Ring of notes of George Bahr, then held by the firm of George W. Halsey & Co., indorsed by the new firm to be composed of Halsey & Broadiliead; and the remaining $1,403 should be paid by the new firm on February 26, 1892, and that Broadhead should pay the new firm $2,500 cash, instead of paying it to Ring. That thereupon Ring transferred to said Broadhead all his interest in the property of George W. Halsey & Co. That Halsey and Broadhead then became partners, under the name of Halsey & Co., which firm indorsed and delivered said notes to Ring, and that they were paid, and that Halsey & Co. agreed to pay Ring the remaining $1,403.- That about July 1, 1891, Broadhead transferred his interest in said firm of Halsey & Co.
At the close of plaintiff’s evidence, the defendants’ attorney moved “to dismiss the complaint, on the ground that the plaintiff has not shown any cause of action, that the ease is within the statute of frauds, and the agreement, if any, should have been in writing;” which motion was granted by the trial justice, and to which decision plaintiff’s attorney excepted. Upon the trial the plaintiff introduced in evidence a bill of sale from Ring to Broadhead, dated February 26, 1891, transferring all his right, title, and interest in and to the business and accounts, stocks, etc., belonging to the said firm of George W. Halsey & Co., in consideration of the sum of $2,500, three notes aggregating $1,097, with interest; and the balance of $1,403, with interest, payable in one year, to be paid by the new firm of Halsey & Co., of which said George W. Halsey and said Henry Broadhead are members. Halsey consented to above bill of sale on February 2, 1891, and testified that the $1,403 “ was a debt that was due from me and my firm before Mr. Carman came in it,” and also testified that “subsequently Mr. Broadhead retired from the firm. He sold his interest to Mr. Carman.” On July 13, 1891, Broad-head, in consideration of $2,500, sold and conveyed all his right, title, and interest, etc., business and account of, in, and to the firm of Halsey & Co., to defendant Carman, and on November 12, 1891, entered into co-partnership with Carman, under the name of Halsey & Carman, in the same business. Henry Broadhead, one of the defendants, sworn on behalf of the plaintiff, testified as follows: “Question. What was the agreement between you and Mr. Carman relative to the payment of the debts of Halsey & Co. by Carman or Halsey & Carman? Answer. Mr. Carman came to see me several times, * * * and when we finally came to a decision we went to the office of Mr. Goeler, and Mr. Goeler drew the papers, and Mr. Carman made a statement of the liabilities of the firm, and the items,—the assets of the firm, and the liabilities of the firm,—and I took from several bills entered in the books, and those that were not entered, an account of the liabilities of the firm, which amount to about $9,000, and in that statement of $9,000 was included the $1,400 which the firm owed Mr. Ring. Q. What was the agreement between you and Mr. Carman in regard to his liability, or the liability of the firm to be formed by him and Halsey, to pay this claim of Ring’s? A. Mr. Carman said that he would accept all the liabilities of the firm, and Mr. Car-man informed me that it had been advertised that the firm was changed from Halsey to Carman, and they accepted all the liabilities of the firm, and he understood the $1,400 was a liability of the firm, and when it became due he ■offered notes for it. Q. What was the agreement between you and Mr. Car-man in reference to the payment of the debts of Halsey & Broadhead? A. We were to pay the debts. Q. Who was to pay the debts? A. Halsey & Carman, the new firm which was to be organized, and they then went into co-partnership together, and they paid the debts of the firm of Halsey & Broad-head.” No writing whatever was produced by the plaintiff, or admitted in evidence, signed by the defendant Carman, or by the firm of Halsey & Carman, assuming to pay said $1,403 to Eugene Ring, plaintiff’s assignor. The witness Halsey was asked: “Question.- Was there any notice published in any
Halsey & Carman were the successors of the firm of Halsey & Co., and the sum of $1,403, claimed herein, was a liability of the firm of Halsey & Co. The testimony offered and excluded was competent to show that Carman recognized his liability, and that he had assumed the payment of the debt, and its exclusion was error; and plaintiff’s attorney’s exceptions to the rulings of the trial justice were well taken. The evidence shows that Carman agreed with Halsey, before their partnership was formed, to pay the debts of Halsey & Co. The transfer of Broadhead’s interest to Carman, and his being.permitted to form a copartnership with Halsey, and the receipt of the assets of the old firm of Halsey & Co., was a sufficient consideration to support the promise, and it was not necessary that this agreement should be put in writing. It was not within the' statute, of frauds. Carman’s agreement with both Broadhead and Halsey- was not to pay the debts of Halsey & Co. on their default; but it was an original agreement, based upon a new, distinct, and present consideration, passing to him from both Halsey & Broadhead. See Schindler v. Euell, 45 How. Pr. 33; Lawrence v. Fox, 20 N. Y. 268; Arnold v. Nichols, 64 N. Y. 117; Barlow v. Myers, Id. 41; Barker v. Bradley, 42 N. Y. 316, 321. It was error on the part of the trial justice in dismissing the complaint on the ground that plaintiff had not shown a good cause of action, and that the case is within the statute of frauds, and that the agreement should have been in writing. Judgment reversed, and a new trial ordered, with costs to abide the event. All concur.
