Zucca v. Kuhne

84 N.Y.S. 181 | N.Y. App. Term. | 1903

MacLEAN, J.

Pending an action brought by the persons named above as defendants, and who are bankers, upon a draft drawn by one Macerata, of Trieste, upon and accepted by the present plaintiff, the parties made a settlement. Therein Zucca agreed to pay "Briesen & Knauth, his opposing attorneys, $200, and to withdraw from the storage warehouse a shipment of mushrooms sent him by Macerata, and to use his best endeavors to obtain for them the best possible price, the sales to. be upon notification to Briesen & Knauth, to whom he was to pay any excess of the price received by him over and above $200. Both agreed to discontinue the action then pending. Also, and lastly, it was agreed (subdivision 6):

“In case said mushrooms or any part thereof should not have been sold on the 31st day of December, 1900, the said Antonio Zueca agrees to turn over and deliver to said Briesen and Knauth at their request all mushrooms which have not been sold, said Briesen and Knauth to pay to said Antonio Zueca the proportionate amount of duties paid by him on such unsold portion and also said sum of $200, in case no part of such mushrooms should have been sold or in case the amount then realized by any sales of such mushrooms should be less than $200 the difference between the amount so realized and said $200.”

The money ($200) was paid, and the action discontinued. Zucca withdrew nothing from the warehouses, paid no duties, and sold no mushrooms, though he says he used his best endeavors to sell them. The attorneys made no request for the mushrooms, and none were turned over or delivered to them, but the plaintiff has brought this action to recover the $200. Manifestly, he had no cause of action. He had not performed the conditions to be performed by him, and the delivery of the mushrooms at the request of the defendants’ attorneys was a condition precedent to any obligation arising on their part to pay the $200.

Judgment reversed, and a new trial ordered, with costs to appellants to abide the event. All concur.