Waitzfelder v. Kahnweiler

By the Court,

Brady, J.

We held, upon the argument of the appeal herein, that the note in suit could not be enforced, because the agreement of which it formed a part, or to which it related, was void, and reserved the question whether the defendants had nevertheless, by a new and valid consideration, incurred the liability to pay the note, or the amount for which it was given.

The parties hereto were engaged in furnishing uniforms to the so-called Confederate States, and after .the termination of the war, had interviews in reference to their accounts, which did not result to the satisfaction of the defendants, but in one of which the defendants promised to pay whatever amount remained unpaid of the note in suit, after the allowance by the plaintiffs of certain credits which the defendants claimed should be made. That promise was not perfected or made absolute by the allowance of the credits; and the condition upon which it rested not having been performed, it acquired no vitality. It appears, however, that at the time it was made, the defendants demanded an order for one half of the clothing which had been made for the Confederate States, under the arrangement existing between them, but which had not been delivered. The order was given and presented, but not honored in full, the plaintiffs having countermanded it, on the defendants’ neglect to pay "the note. There is evidence in the case, that subsequently the plaintiff's revoked the countermand, and advised the defendants of it, although such notice is denied by the defendants. There is, however, no proof that the defendants, on receiving the order, and in consideration thereof, promised to pay the note. The promise to pay, and the demand of the order, though forming a part of the same interview, were different incidents. The defendants appear to have insisted that the whole of the note was not due, and to have expressed a willingness to pay whatever was due, after the application of credits which should be made to the account in their favor; and -the demand of the goods appears to have been the exercise of a right founded upon the payment received by the plaintiffs on account of them, and the intention of the defendants to pay any balance relating to them which might exist. In other words, that the goods which were the subject of a joint enterprise,' having been in part paid for by joint funds, were joint property, and not covered entirely by the advances of the plaintiffs.

[New York General Term, April 4, 1870.

For these reasons the justice presiding at the trial was justified in deciding that no new arrangement had been made and carried out, which purged the original transaction of its turpitude, and the judgment must be affirmed. These views expressed in reference and in response to the point made by the plaintiffs, render it unnecessary to consider whether such a contract as this case presents could be enforced, under any circumstances, in the courts of this State.

Judgment affirmed.

Ingraham, Geo. G. Barnard and Brady, Justices.]