Weill v. Close — 44 N.Y. St. Rep. 662

Majority

p. 662

Henry Weill, Resp’t, v. Charles J. Close, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed April 13, 1892.)

Headnote

Bills and notes—Consideration executory—Substitution.

Where the consideration in a writterf agreement is executory, the parties may substitute for such consideration any new obligation, and if the same is carried into effect, it has the same binding force as though the original consideration was paid or discharged.

Appeal by the defendant, Charles J. Close, from a judgment entered in Brie county, October 9, 1891, on the verdict of a jury directed by the court at the circuit, in favor of the plaintiff against the defendant, for the sum of $1,015.30.

Simon Eleischmann, for app’lt; Moses Shire, for resp’t.

This action was upon a promissory note executed by the appellant Close, as maker, to one Joseph Bork, and by the latter transferred to the plaintiff.

No question is made but that the plaintiff has no other rights in the premises as holder of the note than were possessed by Joseph Bork, the payee. The note was given in renewal of a previous note of like amount between the same parties. The consideration of the original note, as well as of the renewal, was the first instalment or payment upon a contract for the sale of land entered into by Bork with the defendant Close. The land which was particularly contracted for by the defendant Close, had been in fact conveyed by the plaintiff, to whom the contract had been assigned, to another person than the defendant Close and upon this ground it is claimed that there was a failure of consideration for the note, and that consequently this action cannot be maintained. No intervening rights of third persons appearing, this contention would be quite conclusive if it expressed the whole of the case. But after the execution of the contract, and after the

p. 663

maturity of the note, an arrangement was entered into between the defendant Close, one Sniggs and one Kendall, by which certain portions of the lands contracted for with Borlr, and which had been turned over to the plaintiff, and which were, by the original contract to be conveyed to Close, were in fact directed to be conveyed to Sniggs. It is true that this arrangement was oral, but" it was followed by an actual conveyance made by the plaintiff to Sniggs, under circumstances which indicated a direction by the defendant Close.

It is argued by the counsel for the appellant that as neither Bork nor Weill was ever a party to this oral contract, the same was void, and that the conveyance by the plaintiff of the land to Sniggs was not in pursuance of any valid contract. In this proposition we cannot concur with counsel. The evidence is entirely satisfactory to the effect that the plaintiff made the conveyance to Sniggs of these lands, which were originally contracted to be conveyed to the defendant, in pursuance of the oral arrangement made between Close, Sniggs and Kendall.

It appears, therefore, that the original consideration of the note was executory in its nature, and that any other consideration might be substituted therefor by arrangement of the parties. It is a case of a substituted consideration. Where the consideration in a written agreement is executory, the parties may substitute for such consideration any hew obligation; and if the same is carried into effect, as was done in this case, it has the same binding force as though the original consideration was paid or discharged.

If this view be correct, it follows that the judgment appealed from should be affirmed.

Dwight, P. J., and Lewis, J., concur.