Amend v. Becker

The defendants, doing business under the firm name of Becker & Mishkin, made the following promissory note:

“S33oo/100. New York, April 1st, 1897.

“Thirty-five months after date we promise to pay to the order of Ed. B. Amend thirty-three 00/100 dollars, with interest at 6% per annum, at 214 Delancey street, New York City. Value received,

“Becker & Mishkin.”

—and indorsed as follows%

“Aaron Becker.

“Isaac Mishkin.”

The note was one of" a series aggregating upwards of $2,000.

The pleadings were in writing. The complaint alleged the making of the note, the individual indorsement thereof by each of the defendants, and the delivery of the same to the plaintiff, the presentation for payment at maturity and the default in the payment thereof.

The defendant Becker put in no answer, but the defendant Mishkin pleaded two defenses: First, that' subsequent to the execution and delivery of the note sued upon, the defendants dissolved their copartnership, making an agreement at the same time that the defendant Becker was to assume payment of all notes, including the one in suit, and that subsequent to such payment the plaintiff, for a valuable consideration, released the defendant Mishkin from all liability, and agreed to accept the defendant Becker as “individually accountable.” The second defénse was that the plaintiff, after the agreement referred to, reduced the amount of the various notes from $33 to $22, and the rate of interest from 6 per cent, to 4 per cent. Upon the close of the case the plaintiff moved for judgment

The only argument of the appellant which need be considered proceeds upon the claim that a distinction exists, as to the personal liability of a partner, between a case where he has not and one where he has individually indorsed the copartnership note. In the former case he is personally liable only after the copartnership assets have been exhausted, while in the latter case he is so liable, whether such assets have been exhausted or not. From this it follows that where a creditor agrees with the copartners that he will release one, and accept the personal liability of the other, he receives a consideration for such release; that consideration being the immediate and primary liability to him of one of the partners, and the consequent right to enforce payment from that partner without first having recourse to the copartnership assets. Ludington v. Bell, 77 N. Y. 138 , 140, 33 Am. Rep. 601 ; Lyth v. Ault, 7 Exch. 669, 671. Where both the copartners are indorsers, however, this liability of both already exists, and consequently there is no consideration for an agreement to release either. See Harrison v. Close, 2 Johns. 448 , 449, 3 Am. Dec. 444 . It does not appear in the- cases cited by the respondent (Colgrove v. Tallman, 67 N. Y. 95 , 23 Am. Rep. 90 , and Hanks v. Gerbracht [Sup.] 26 N. Y. Supp. 1097 ) that there was any such indorsement, nor has any case been called to our attention where such was the fact.

It should, perhaps, be added that no consideration, in the legal sense, is found in the circumstance that the, defendant suffered, as is claimed, a loss in consummating the dissolution after the interview with the plaintiff. Ridgway v. Grace, 2 Mise. Rep. 293, 21 N. Y. Supp. 934 . Moreover, there is no evidence whatever that the detriment, if any, was suffered at the instance of the plaintiff, which would be an essential element of the case. 6 Am. & Eng. Enc. Law (2d Ed.) 688; Stewart v. Trustees, 2 Denio, 403 , 408; Hamilton College v. Stewart, 1 N. Y. 581 .

It results from the views above expressed that the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

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