Bicknell v. Spier — 53 N.Y. St. Rep. 694

Majority

p. 694

Henry C. Bicknell, Resp’t, v. Gilbert M. Spier, Rec’r, App’lt.

(City Court of New York, General Term,

Filed June 19, 1893.)

Headnote

Money loaned—Amount advanced to coepobation.

The complaint herein set forth an agreement between the plaintiff’s assignor and the corporation of which defendant is receiver, by which the' former was to loan and advance to the corporation the sum of $8,750, to be used as working capital, and alleged that said assignor advanced $1,500 in cash and his note for $3,250, which was accepted as a compliance. The answer denied the agreement alleged, ar.d averred an agreement between the corporation and said assignor and three others by which $15,000 was to be raised as working capital by them equally; denied performance by said assignor and set up a counterclaim for overpayment for services. On the trial plaintiff introduced in evidence an agreement as alleged by him, while defendant gave no proof of the one alleged in the answer. The court rendered judgment for the $1,500, with interest, less the over-payments for services. Held, no error.

Appeal from a judgment entered on the 14tli day of January, 1892, in favor of the plaintiff, for the sum of one thousand six

p. 695

¡hundred and sixty-one dollars and, seventy-six cents ($1,661.76) upon the decision of the trial justice, a jury trial having been waived.

Bullard & Shannon, for resp’t; J. C. O' Connor (S. B. Brownell, of counsel), for app’lt.

The plaintiff herein, the assignee of one Clinton ¡E. Jackson, in his complaint alleges that on or about April 4, 1890, an agreement in writing under seal was duly executed between the Vertical Tube Boiler Company, the defendant herein, of the first part, and one Clinton E. Jackson, of the second part, whereby among other things it was agreed that the said Jackson would loan and advance to the defendant the sum of three thousand seven hundred and fifty dollars ($8,750) to be used as working capital in the business of the defendant, etc.

That in pursuance of said agreement the said Jackson, about April 4, 1890, loaned and advanced to said defendant the sum of one thousand and five hundred dollars ($1,500) in cash, and also his negotiable promissory note for two thousand two hundred and fifty dollars ($2,250), which was accepted as a compliance with the requirement of said contract in that regard.

Also alleges assignment of said Jackson’s claim, and demands judgment for the sum of one thousand five hundred dollars ($1,500) and interest.

By an order made herein on the 7th day of July, 1891, Gilbert M. Spier, Jr., the receiver of the said Vertical Tube Boiler Company, was substituted in the place and stead of the said Vertical Tube Boiler Company.

The defendant Spier, Jr., as receiver, in his answer denies that the agreement between said Clinton E. Jackson and the Vertical Tube Boiler Company is in the complaint correctly stated, and avers and sets up an agreement made on the 4th day of April, 1890, between the said boiler company and Edward P. Steers, Richard Webber, Thomas Crawford and the said Clinton E. Jackson, whereby the said Steers, Webber, Crawford and Jackson agreed that they would pay into the treasury of said boiler company, for the purpose of working the said company, the sum of fifteen thousand ($15,000) -dollars, which said sum was to be equally divided between them, that is to say, each and every one of them ymuld pay to the said company the sum of three thousand seven hundred and fifty ($3,750) dollars, to be used as working capital for said company.

That said Jackson has failed to comply with his agreement.

Inasmuch as no claim is made herein by the plaintiff for services rendered by the said Jackson, as manager of the Vertical Tube Boiler Company, he only claiming to recover for money loaned by the said Jackson, it is unnecessary to consider, for the purpose of this appeal, any such claim, or the evidence therein, introduced upon the trial, except so far, only, as may apply to the counterclaim set up in defendant’s answer.

The plaintiff offered in evidence a paper, which defendant’s counsel admitted was executed by the defendant corporation, and the same was admitted. (Plaintiff’s Exhibit ¡No. 1.)

p. 696

By-the terms of the agreement (Plaintiffs’ Exhibit No. 1), made by and between the Vertical Tube Boiler Company, party of the-first part, and Clinton E. Jackson, party of the second part:

“ First. The party of the first part agreed to raise and place in its treasury the sum of fifteen thousand dollars ($15,000) in cash,, of which sum the jDarty of the second part agrees to forthwith loan and advance to the party of the first part the sum of three thousand seven hundred and fifty dollars ($3,750), which total sum of fifteen thousand dollars ($15,000) is to be used as working capital to carry out the purposes and terms of this agreement."

, An assignment of the claim of said Jackson to the plaintiff herein was also received and admitted in evidence.

No evidence' was offered by defendant, of the agreement set forth in defendant’s answer, and the trial justice upon the evidence herein found among other facts:

That said Jackson had loaned and advanced to said defendant corporation, with accrued interest thereon, the sum of one thousand five hundred and fifteen dollars ($1,515).

That said Jackson had received, over and above the amount due him for liis services as manager for defendant, the sum of one-hundred and fifty thirty-nine-one-hundredth dollars ($150.39).

That said sum of one thousand five hundred and fifteen dollars, with interest to October 7, 1890, amounted to the sum of one thousand live hundred and sixty forty-five-one-hundredth dollars, and that after deducting the said sum of $150.39, being the amount received by said Jackson over and above the amount due him for his services as manager, there was a balance of one thousand four and ten six-one-hundredth (1,410.06) dollars due said Jackson, which, with interest thereon to the date of trial amounted to the sum of $1,505.15.

And found as a conclusión of law, that plaintiff is entitled to recover of the defendant in this action, as such receiver, the sum of one thousand five .hundred and five dollars and fifteen, hundredths ($1,505.15), with costs.”

Judgment was thereupon, and on the 14th day of January, 1892, entered for said amount of $1,505.15, with $156.61 costs,, amounting in all to the sum of one thousand six hundred and sixty-one dollars and seventj^-six hundredths, ($1,661.76).

We find no error on the part of the trial justice, and no merits: in the exceptions taken by defendant's attorneys to the rulings of the trial justice on the admission of evidence, or to the findings of fact or conclusions of law, and the1 judgment appealed from must be affirmed, with costs to the respondent.

Van Wyck and Fitzsimons, JJ., concur.