Miller v. Campbell

Headnote

Miller v. Campbell, 173 App. Div. 821 , affirmed.

Ceoss-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered September 30, 1916, affirming a judgment entered upon a decision of the court at a Trial Term without a jury dismissing the plaintiff’s complaint and also dismissing the defendants’ counterclaim. Plaintiff as attorney-in-fact assumed to sell some lands in Tennessee to defendants’ testator. Under the power of attorney, as was known to defendant’s testator, plaintiff, was to receive the full purchase price in excess of $10,000. The defendants paid what was equivalent to $10,000 in cash and $10,000 in notes drawn payable to the plaintiff’s principal. Those notes were immediately turned over to the plaintiff to represent his interest in the sale. The title to the property failed, and plaintiff seeks to escape the defense of failure of consideration by claiming to hold the notes as a purchaser for value. The deed was originally drawn in form from plaintiff acting as attorney-in-fact to defendant’s testator. One Louise J. Traynor joined in the deed to convey any right of dower that she might have. Afterwards the plaintiff’s principal McMurray also joined. The deed recites a covenant on behalf of the parties of the first part that they are

lawfully seized and possessed of said property and that they have full right and authority to convey it. Defendants’ counterclaim is upon this covenant.