Bank of Buffalo v. Thompson
| Citation | 24 N.E. 473,121 N.Y. 280 |
| Parties | BANK OF BUFFALO v. THOMPSON et al. |
| Decision Date | 29 April 1890 |
| Court | New York Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, fifth department.
Action by the Bank of Buffalo to foreclose a mortgage executed to it by defendant John Thompson and his wife. A judgment for defendants was affirmed at general term, and plaintiff again appeals.
Spencer Clinton, for appellant.
Tracy C. Becker, for respondents.
On the 24th day of April, 1882, John Thompson was indebted to the plaintiff upon his individual promissory notes, and was then carrying on business in his own name, and in that way had dealings with the plaintiff. On that day he executed to it a mortgage upon real estate situated in the city of Buffalo, conditioned as follows: ‘Provided always, and these presents are upon this express condition, that if the said John Thompson, his heirs, executors, or administrators, shall and do well and truly pay, or cause to be paid, unto the said the Bank of Buffalo or its assigns, the just and full sum of all promissory notes, checks, or bills of exchange which have been, or which shall at any time hereafter be, made, drawn, indorsed, or accepted by the said John Thompson, and which have been or shall at any time be discounted by the said bank, for his benefit, when and as the same shall become due and payable, and shall also any upon demand any and all overdrafts made by him, and all balances of account, and all sums of money which now are or shall at any time be due or owing by him to said bank upon any account whatever, then this conveyance shall be void; otherwise to remain in full force and virtue,-this mortgage being given and intended as a collateral and continuing security for the payment of all such indebtedness to the amount of seventy five thousand dollars.’ Subsequent to the execution and delivery of that mortgage Thompson continued his individual dealings with the plaintiff, and it discounted for his benefit many notes made or indorsed by him. Several years after the mortgage was given, Thompson formed a copartnership with three other persons, under the firm name of Reynolds, Thompson & Co., and the firm carried on business under that name, and the plaintiff discounted for the firm several notes made and indorsed by Thompson in the firm name. The plaintiff claims that these firm notes are secured by the mortgage, and the defendants contend that they are not so secured, and their contention has been sustained by the court below, and mainly, it is said, upon the authority of Bank v. Tarbox, 38 Hun, 57.
We think the court below properly construed the condition of the mortgage. It is clear that at the time of the execution of the mortgage the parties did not contemplate any firm indebtedness, or any...
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...& Guaranty Co. v. Neal, 188 Ga. 105, 3 S.E.2d 80; Rasmussen v. Trico Feed Mills, 148 Neb. 855, 29 N.W.2d 641; cf. Bank of Buffalo v. Thompson, 121 N.Y. 280, 24 N.E. 473; Hartigan v. Casualty Co. of America, 227 N.Y. 175, 124 N.E. 789; Nevills v. Moore Min. Co., 135 Cal. 561, 67 P. Decisions......
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...was a member, and for whose debts, jointly with the other members of the firm, he could be made responsible." Bank of Buffalo v. Thompson, 121 N.Y. 280, 24 N.E. 473. We conclude that it was not the intent of the parties to regard the obligations of a partnership of which the husband was a m......
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