Majority
p. 49Patrick Cassidy et al., App’lts, v. Frederick K. Aldhous, Resp’t. (New York Common Pleas, General Term, Filed March 7, 1894.)
Headnote
Bills and notes—Consideration.The release of a mechanic’s lien, rescinded by mutual consent, furnishes no consideration for an agreement to give a note.
Appeal by the plaintiffs from an affirmance, of the general term of the city court, of a judgment dismissing the complaint, at the close of the plaintiffs’ case. The action was to recover the value of plumbing materials to the amount of $540.30 from the defendant, through Pierce & Thornton, from whom it was alleged he retained the money to pay the plaintiffs and agreed to do so. The answer was a general denial. The complaint was amended by setting up an agreement of defendant to give the plaintiffs his note for $500 on condition that they satisfy a mechanic’s lien which they had filed for said materials; their compliance with the condition and his refusal to perform his agreement.
Thomas G. Hnnever, for app’lts; W. H. Benjamin, for resp’t.
When the plaintiffs rested they had failed to
p. 50
prove any authority in Pierce & Thornton to purchase goods on defendant’s credit. So that their sole claim of his liability rested upon the agreement set up in the amendment to their complaint. The proof showed that defendant agreed to give a note for $500 if the plaintiffs removed their lien; that they did discharge the lien, and that defendant subsequently refused to give the note and told the plaintiffs that they might put the lien back again, which they did and filed it against his property. It thus appeared that the agreement for the note in consideration of the removal of the lien was rescinded by mutual consent and the lien restored. Tiiis disposed of the alleged cause of action under the amendment and the complaint was properly dismissed. It is urged by appellant that defendant ratified the purchase by Pierce & Thornton by the agreement to give the $500 note, but the evidence showed that when he agreed to give the note he refrained from acknowledging any liability for the goods.
Judgment affirmed.