Forbes v. Haas — 32 N.Y. St. Rep. 107

Majority

p. 107

Robert W. Forbes, Resp’t, v. Frederick Haas, App’lt.

(New York Superior Court, General Term

Filed May 5, 1890.)

Headnote

1. Evidence — Agreement made in absence ov plaintive cannot be SHOWN UNLESS AGENCY SHOWN. |

In an action upon a written instrument for the payment of $500 to plaintiff in case he was not repaid an advance made for rent of a corpora

p. 108

tian in a specific time, the defense was that plaintiff had been paid. Defendant offered to prove an arrangement made with one F., when plaintiff was not present. Held, that the court properly overruled questions as to what the arrangement was, as there was no proof at the time they were asked that F. was plaintiff’s agent in respect of the matter in controversy.

2. Same.

Counsel stated that the understanding was that the rent should have a prior lien under a mortgage made by the company to F. as trustee, and that he was to see that any collections made should be first applied to its payment. Held, that this did not make the evidence admissible, as such arrangement would not result in payment of the rent until collections were made and applied to repay the amount that had been paid for rent.

Appeal by defendant from judgment entered upon verdict for plaintiff and from order denying motion for new trial made upon the minutes.

Samuel Qreenbaum, for app’lt; Henry S. Foster, for resp’t.

The action was by plaintiff as payee, against the defendant as maker of the following instrument:

“ In consideration of the payment by Robert W. Forbes of the sum of $1,100 for the rent now due of the Colosseum Company, I hereby promise and agree if the said Robert W. Forbes is not repaid the sum of $1;100 within two months from date to pay him the sum of $500, with interest from date, on demand.

“ Dated New York, March 11, 1885.

“ Fred’k Haas.”

The defense was that the plaintiff had been repaid the rent in the sum of $1,100. To sustain this defense the defendant proposed to prove an arrangement that had been made before the instrument was signed. The arrangement, it was conceded, had not been made when the plaintiff was present. The defendant took the position that in ma, the plaintiff was bound by the arrangement, because one party to it was Charles Forbes and that Charles Forbes then acted as the agent of the plaintiff.

The court was right in overruling questions asked to show what was the arrangement. At the time the questions were asked, no facts were in evidence which tended to show that Charles Forbes was the agent of the plaintiff in respect of the matter in controversy.

The defendant’s counsel, moreover, declared, that what he desired to prove in connection with Charles Forbes was that at the time the defendant agreed to contribute $500 to the rent “ it was understood that the payment of the rent was to have a prior lien to all orders under a mortgage,” for $20,000 made by the company, and that that arrangement was made with Charles Forbes. The counsel also said that the understanding prior to the time the note was given was, that moneys to be advanced by the different parties to the payment of rent was to have a prior lien on this $20,-000 mortgage to Charles Forbes as trustee, and that he was to see ^hat anything brought in first from the company, any collections that might be made, should be first applied to the payment of this .rent.

p. 109

It is manifest that such an arrangement would not be payment of rent, or result in that, until collections had been made and applied to repay the amount that had been paid for rent

There was another claim on the trial. It was that in July, after the making o£ the instrument, the plaintiff had surrendered to the company his claim against it for his payment of rent on his receiving certain bonds and mortgages and shares of the company. The evidence was conflicting as to whether the plaintiff received the bonds and shares from the company as payment or as collateral security. The jury competently found for the plaintiff on this issue.

The judgment and order are affirmed, with costs.

Freedman and O’Gorman, JJ., concur.