Rigby v. Oppenheimer

Opinion by

William W. Porter, J.,

The defendant put his signature to this paper: “ Philadelphia, Jan. 12th, 1898. I the undersigned, A. Oppenheimer of the firm ■ of Theobald & Oppenheimer, hereby agree to give to Mr. J. A. .Rigby of Mansfield, O., free of charge to him twenty thousand (20,000) ‘Maritana’ cigars in the event of his purchases of 'Theobald & Oppenheimer during the year of 1898 amount to ■one hundred and thirty thousand dollars. ($130,000). A. Oppen.heimer.”

The plaintiff avers that the purchases exceeded the amount named, and that the value of the cigars undelivered is $600. The defendant in substance says in his affidavit: (1) that the paper writing was not his obligation but that of his firm; (2) that it was merely a memorandum without consideration; (3) that he has retired from the firm with agreement that his partner shall pay its debts, and that the plaintiff is now associated with the continuing partner; and (4) that the cigars were ¡worth $400 and not $600. An attempt to prove the document the obligation of the partnership and not of the individual would be futile. The evidence could not be received. Nothing can be clearer than that it would be a change in the substantive terms of the paper. No averment is made of mistake or fraud, or of any promise made as inducement to the giving of the writing in its present form. The averment of want of consideration is not sufficient to prevent judgment. The interest of a partner in the increase of the business of his firm is adequate consideration to support the promise made. The obligation being individual, the averments respecting the retirement of the defendant from his firm, and the assumption of the firm debts by successors, do not help the defendant. The court below has entered judgment for want of sufficient affidavit and for the amount admitted by the affidavit. There being no defense upon the merits shown, no error was committed in entering the judgment.

Judgment affirmed.