Blair v. Lynch

• Decision Date: 19 April 1887
• Citation: 11 N.E. 947,105 N.Y. 636
• Parties: BLAIR and another v. LYNCH.
• Court: New York Court of Appeals Court of Appeals

105 N.Y. 636

11 N.E. 947

BLAIR and another

v.LYNCH.¹

Court of Appeals of New York.

April 19, 1887.

Appeal from general term, supreme court, Fourth department.

Action by the plaintiffs, as copartners, to recover from defendant a balance claimed to be due upon a loan made by them to the defendant on the nineteenth day of July, 1873. The answer pleads the statute of limitations. In July, 1873, one John O. S. Lynch was the owner of a bond and mortgage upon fine salt lot No. 36 of the Salt Springs reservation, which was given as a security for the payment of $6,000. He had pledged this mortgage as collateral security for the payment of a loan of $2,000 with Wilkinson & Co. in March previous.

The plaintiffs claim that about that time they were approached by the defendant with the request that they should purchase this mortgage from John O. S. Lynch, provided they could get it for $4,000, and that he would pay them $100 commission for making the purchase. Shoutly thereafter John O. S. Lynch applied to the plaintiffs for a loan of $3,500, with which he wished to pay the debt which he owed the Wilkinsons and others, and proposed to give the plaintiffs an assignment of the mortgage as collateral security. The plaintiffs claim that they informed the defendant of this proposition, and that he said that he would take the mortgage at $3,500, if the plaintiffs could get it at that, and that he would give them a commission of $100. One of the plaintiffs swears that he informed the defendant that John O. S. Lynch would not make an absolute assignment of the mortgage; that he thought he would redeem it; and the defendant then told him to go on and make the loan, and get an absolute assignment if he could, and that, at the expiration of the loan, when it matured, he would take up the $3,500, and give him $100 commission for the transaction. In other words, that, if John O. S. Lynch did not repay plaintiffs, he (defendant) would,-would take a transfer of the mortgage from plaintiffs, and pay them $100 commissions. Thereupon the loan was consummated, and the money paid to John O. S. Lynch. An assignment of the mortgage was executed to the plaintiffs. The loan made to John O. S. Lynch matured on the twenty-second of September, 1873, at which time the notes executed by John O. S. Lynch were protested for non-payment. Plaintiffs commenced an action upon the notes against John O. S. Lynch, and recovered judgment against him December 11, 1873. In their complaint they swear that they were holders and owners of the notes executed by John O. S. Lynch. Upon this judgment, supplementary proceedings were instituted, and at different times moneys were collected thereon to the amount of about $450. On November 25, 1873, the defendant and plaintiffs executed the following instrument:

‘For and in consideration of the sum of $1,800 this day paid by Patrick Lynch, the receipt of which is hereby acknowledged, we hereby sell and assign one-half of our interest in the above-described bond and mortgage, and hereby agree with the said Patrick Lynch to pay over to him one-half of all the moneys hereafter collected upon said bond and mortgage, and said Patrick Lynch is the owner of a one-half interest in the said bond and mortgage, and hereby agrees to pay one-half of all expenses incurred in the collection of the same.

BLAIR & TRUESDELL.

‘ Syracuse, November 25, 1873.’

The plaintiffs swear that the conversation that preceded the execution of this instrument was embodied therein.

Plaintiffs moved for the direction of a verdict, but the defendant requested that the court submit ‘as questions of fact upon all the evidence in the case such matters as the court thinks the case turns upon; one being the question as to whether the defendant employed the plaintiffs to purchase the mortgage for him, and agreed to pay them for the same if they did; and the second being as to whether the mortgage became the property of the defendant by virtue of plaintiffs' purchase of the mortgage from John O. S. Lynch.’ The plaintiffs insisted upon the direction of a verdict because there was no question of fact for the jury, on the ground that ‘there was no dispute upon the evidence upon the main proposition that Blair & Truesdell, as agents for Patrick Lynch, transacted this business, and that he undertook to repay to them the amount of the money.’ The motion was granted, and a verdict directed, and the defendant duly excepted to the ruling, as well as to the refusal of the court to submit the case to the jury, as requested.

Louis Marshall, for appellant.

Forbes, Brown & Tracy, for respondents.

FINCH, J.

If we assume that the learned trial judge correctly decided that the plaintiffs' evidence was sufficent to establish the contract pleaded beyond any necessity for submitting that question to the jury, because there was no direct contradiction of the witnesses, and the circumstances tending to raise doubt or suspicion were more than balanced by the silence of the defendant, who might have made an effectual denial,-an assumption not above criticism, and as to which we do not all agree,-there yet remains a material question which, if not decided in favor of the defendant, should at least have been submitted to the jury.

The statute of limitations was pleaded as a defense, and confessedly barred the right of recovery unless the debt was revived by a payment upon it. So far as...