Badenhop v. Rudo S. Globus, Inc. ( 1961 )

Jacob Markowitz, J.

Plaintiff moves for dismissal of the counterclaim and for summary judgment. The action is based upon four promissory notes. The plaintiff had engaged in an agreement with Rudo S. Globus, dated April 8, 1960, pursuant to which the plaintiff agreed to advance, at Globus ’ request, the sum of $175,000. The sum of $100,000 was advanced. Thereafter, the agreement was duly assigned to this defendant. On March 1, 1961 a further agreement was made between these parties and, pursuant to that agreement, the notes in issue were executed and delivered. The defendant has asserted a defense and counterclaim based on the April 8,1960 agreement charging breach thereof in that plaintiff has refused, upon demand, to make further advance in the sum of $75,000, and contending that the obligation to do so was continued in the agreement of March 1, 1961. The latter agreement recited the purpose and intent to change the terms of the April 8, 1960 agreement. It provided for the release of Rudo S. Globus under the April 8, 1960 agreement and the defendant assumed the obligation to repay the sum of $100,000 as advanced thereunder and such assumption of obligation was evidenced by the notes in suit. It further provided that “ all of the parties agreed that all prior agreements are merged herein and that this agreement may not be changed orally ’ \ Defendant relies on the recital of the purpose to modify and change the terms of the earlier agreement, yet the purpose is expressly exemplified in that provision of the later agreement which provides for the merger therein of the earlier agreement. No express provision was therein made with respect to any obligation of the plaintiff to make any further advance and no mention of any such existing obligation is contained in the lengthy letter of the defendant dated May 8, 1961. There is no defense to this action on the notes and no triable issue is raised. The motion is granted.