Windt v. Schlitt — 132 N.Y.S. 766

Majority

p. 766

WINDT v. SCHLITT et al.

(Supreme Court, Appellate Term.

January 5, 1912.)

Headnote

Bills and Notes (§ 132^[1] ) — Conditions of Payment.

Plaintiff sued on a note given him by defendants which in terms provided, “Note to be paid if no losses will occur in our business,” and an agreement was in evidence which recited that "the parties thereto were engaged in a partnership, and that the note was part of the consideration for the plaintiff’s agreement, on withdrawal, to release defendants from all claims, and that defendants might deduct from the note any business losses during the ensuing six months, and there was proof that at that time there had been a loss greater than the amount of the note. Held, that defendants were not liable.

[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 316-324; Dec. Dig. § 132.^[1] ]

Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Jacob Windt against Abraham. Schlitt and another. From a judgment of the Municipal Court in favor of plaintiff, defendant Schlitt appeals. Reversed,- and new trial ordered.

p. 767

Argued before SEABURY, LEHMAN, and PAGE, JJ.

Louis N. Jaffe, for appellant.

Louis Halle, for respondent.

Plaintiff sued to recover upon a promissory note made by the defendants for $88.50. The note was offered in evidence. By its terms it was provided:

“Note to be paid if no losses will occur in our business.”

With the note the plaintiff offered in evidence a certain agreement between the parties to this action. This agreement recites that the parties thereto are engaged in a partnership business under the firm name of the Manháttan Paper Box Company and that the plaintiff is desirous of withdrawing from that business. The note in suit is specified in the agreement as part of the consideration for the plaintiff’s agreement to release the defendants from all claims that may arise out of said business. By the terms of the agreement it is also provided that the plaintiff “shall be responsible for any losses that may arise out of the said business during the next ensuing six months, and which losses, if any,” the defendants “are privileged to deduct from the payment of the said note.” The proof showed that at the end of six months from the signing of this agreement there was a loss of about $700. Upon this proof, it is plain that the defendants’ liability was not established.

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