Martin v. Pollatchek — 52 N.Y. St. Rep. 424

Majority

p. 424

Adam Martin, App'lt, v. Frank Pollatchek, Resp't.

(City Court of New York, General Term.

Filed April 14, 1893.)

Headnote

Money had—Sale of bonds on instalment plan.

In an action for money had and received by a firm to plaintiff’s use, brought against one who had agreed to pay the debts of the firm, it appeared that said money had been paid by plaintiff to said firm upon certificates for the purchase of bonds on the instalment plan; that of the twenty instalments he had paid seven. No fraud or mistake was alleged, but plaintiff was permitted to testify that he was told they were lotteries- and to keep the ceriificates and he would get his money back. Reid, that he was property nonsuited.

Appeal by plaintiff: from judgment in favor of defendant, entered upon a nonsuit.

A. I. Sire, for app’lt; O. B. Gould, for resp’t.

The plaintiff sues defendant, who agreed to-pay all the lawful debts of the firm of Schreiber, Pollatehek & Son, and alleges that such “ firm received from plaintiff seventy dollars to the use of plaintiff.’’ One-half of this sum, to wit, thirty-five dollars, was made up of seven payments of five dollara each, under one agreement, and the other half under another and similar agreement, and all that is said of the one applies to the other. The plaintiff, on trial, offered and had marked in evidence an agreement or certificate No. 2699, signed by said firm, and by them delivered to him when he made the first payment of five dollars in June, and which provided among other things, that “ On payment of five dollars as a first instalment, and of further twenty monthly instalments of five dollars each, payable at our office, on the first day of -each month, we agree to deliver to bearer the following five original bonds, to wit: ” and this agreement further provides that “ By accepting this certificate, the buyer signifies his consent to the conditions therein contained, and cannot thereafter rescind his agreement thereunder.”

The proof shows that he paid six other instalments of five dollars each in the next succeeding six months, and that upon each of such payments he received from the firm a receipt as fol'ows: “ Received from Adam Martin, five dollars as second payment on certificate No. 2699.” And so on as to the third, fourth, fifth, sixth and seventh instalment.paid by him. This action is to recover these seven payments as mpney received by said firm to the use of plaintiff, and there is no allegation of fraud or mistake.

However, the plaintiff was allowed, against defendant’s objec-' tion, to introduce evidence of the sayings of the firm when this agreement No. 2699 and the other similar one was delivered to-plaintiff, as follows: “He said that I should keep them and pay him five dollars on each, and I said ‘What for? ’ and he said that they were lotteries, and that if I paid five dollars apiece, I should get"my money back. I told him tlrnt I did not want them, and he said ‘ You be sure and keep them, and you will be sure of your money.’ ” The plaintiff took them in June, and then paid the first instalment, aud continued to pay the montlily instalments for six

p. 425

months thereafter, keeping the agreements of sale meantime and producing them on trial. It is conceded by plaintiff that these bonds sold on this instalment plan are authorized by the decisions of the court of appeals.

The plaintiff was properly nonsuited at trial, and the judgment is affirmed, with coste.

McGow-n and Fitzsimons, JJ., concur.