Leibinger & Oehm Brewing Co. v. Ernst — 35 N.Y.S. 47

Majority

p. 47

(89 Hun, 156.)

LEIBINGER & OEHM BREWING CO. v. ERNST.

(Supreme Court, General Term, Second Department.

July 26, 1895.)

Headnote

Receipt—Promise to Pat Third Person—Right oe Action—Consideration.

A bill of sale was left with the vendor's attorney, to be delivered to the purchaser on payment of $75. The purchaser stated that the vendor had agreed to allow the $75 to be applied on a mortgage on the property. The attorney said that he knew of no such arrangement, but gave the purchaser a receipt for the money as having been received from the vendor, and in the receipt stated that it was to be paid to the mortgagee for goods sold

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the vendor. The vendor afterwards denied that he agreed that the money should be applied on the mortgage, and on his demand the attorney paid tlie amount to him. Held, that the mortgagee could not recover the amount from the attorney.

Appeal from circuit court, Kings county.

Action by the Leibinger & Oehm Brewing Company against Frederick H. Ernst. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

Henry C. Botty (Harmon H. Shook, of counsel), for appellant.

M. Hallheimer, for respondent.

In the early part of June, 1894, Lubersen verbally contracted to sell a saloon to Shoeffel, and was paid $25 on account of the purchase. On June 14th, Lubersen executed a written conveyance of the saloon for tne expressed consideration of $100, subject to a mortgage of $1,000, and left it with the defendant, his attorney, to be delivered to the purchaser. On the 16th the purchaser and his attorney called on defendant to receive the conveyance, and stated to him that Lubersen had agreed that the $75 unpaid balance of purchase money might be applied to reduce the mortgage. Defendant replied that he had not been notified of such agreement, but on receiving the $75 executed and delivered to the attorney of the purchaser a paper as follows:

New York, June 16th, 1894.

Rec’d from M. F. Lubersen the sum of $75, to be paid to Leibinger & Oehm Brewing Co. as part payment for goods sold and delivered by said Brewing Co. to said Lubersen.

[Signed] Fred B. Ernst.

Later, when Lubersen saw defendant, he denied that he had agreed to apply the $75 to reduce the mortgage, and claimed that it be paid to him, which wras done. When the $75 was demanded by the brewing company, defendant refused to pay, and this action was brought. On the trial the principals and attorneys were all examined as witnesses. No proof was offered that Lubersen had in fact agreed to apply the $75 upon the mortgage. The defendant sought to show that Lubersen never did so agree, and the testimony was excluded. The defendant testified that at the time he gave the receipt he stated that he had no personal knowledge of the arrangement to apply the $75 on the mortgage, and should not pay it over without the authority of Lubersen. But the court held that the receipt was a contract that could not be modified by paroi, and directed a verdict for the plaintiff. Numerous objections are urged to this ruling. One, apparently well taken, is that the agreement to apply the $75 on the mortgage seems to be a naked promise. No consideration moved to defendant, nor is any shown to have moved to his principal. It is not claimed that Lubersen ever authorized defendant to make the promise. And if it be, as sought to be shown, that Lubersen never agreed to apply the $75 on the mortgagé, plainly the defendant would have had no ground to refuse to pay that sum to Lu

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bersen on Ms demand. The $75 in defendant’s hands was received by him as attorney, which was known to all parties. Had the money in fact been placed in defendant’s hands as recited in the receipt, with instructions to pay it to plaintiffs, Lubersen could have countermanded the order at any time before it was paid over. Nor is there any evidence that plaintiffs ever changed their position in reliance upon the receipt. Upon'the whole case we are of opinion that the plaintiffs did not establish a cause of action, and that the judgment must be reversed, and a new trial ordered, with costs to abide the event. All concur.