Diehl v. Becker

• Decision Date: 02 December 1919
• Citation: Diehl v. Becker, 227 N.Y. 318, 125 N.E. 533 (N.Y. 1919)
• Court: New York Court of Appeals Court of Appeals
• Parties: GEORGE H. DIEHL, JR., Appellant, v. AMALIE M. BECKER, as Executrix of ERNEST G. HOFFMANN, Deceased, and WILLIAM D. SPORBORG, as Administrator with the Will Annexed of the Estate of ERNEST G. HOFFMANN, Deceased, Respondents.

227 N.Y. 318

125 N.E. 533

DIEHL

v.BECKER.

Court of Appeals of New York.

Dec. 2, 1919.

Action by George H. Diehl, Jr., against Amalie M. Becker, as executrix of the estate of Ernest Gustav Hoffman, and another.From judgment of Appellate Division(186 App. Div. 16,174 N. Y. Supp. 100) reversing judgment of the Trial Term entered upon a verdict directed by the court in favor of plaintiff and dismissing complaint, plaintiff appeals.

Affirmed.

See, also, 178 App. Div. 12,164 N. Y. Supp. 920.

The complaint alleged that on March 19, 1908, the plaintiff loaned to one Hoffman, the sum of $5,000 upon the terms and conditions of the following letter:

‘March 19, 1908.

‘Mr. George H. Diehl, Jr., New York City-My Dear Sir: If you will loan me the sum of five thousand dollars ($5,000), I will secure to you the payment of that amount out of the net proceeds realized by me from the sale or other disposition of the following inventions of mine or from the granting of any rights or licenses thereunder or under any letters patent of the United States that may be granted therefor, viz.: [Describing certain letters patent.]I also agree that if any such sale or license be made within six months from the date hereof to pay to you out of the net proceeds derived therefrom as and when received by me the said sum of $5,000, with interest thereon up to the time of payment at the rate of 6 per cent. per annum, together with the further sum of $1,250, provided the whole of said sums are thus paid within such period of six months.

‘I also agree that if any such sale or license be made at any time after six months from the date hereof to pay to you out of the net proceeds derived therefrom, as and when received by me, the said sum of $5,000, with interest thereon up to the time of payment, at the rate of 6 per cent. per annum, together with the further sum of $2,500.

‘Of course, it is to be understood between us that I retain the sole right for the term of five years from the date hereof to sell the above inventions and applications and any letters patent of the United States that may be granted therefor or to grant rights or licenses under the above mentioned applications or under any letters patent of the United States that may be granted therefor on such terms as I see fit notwithstanding this letter, but I hereby agree to notify you when I shall have made any such sale or license.

‘I, however, agree that if I make any sale of the above-mentioned inventions or letters patent therefor, instead of granting any rights or licenses thereunder, that I will not sell the same for less than the sum of $10,000.On the other hand, if I grant any rights or licenses under the above-mentioned inventions or under any letters patent therefor, then the net amount of royalties which I may receive therefrom shall be paid over by me to you from time to time until the whole of the above-mentioned sums have been fully paid to you.

‘It is also understood that I am to pay to you semiannually the interest at 6 per cent. per annum on the above-mentioned sum of $5,000 until said sum is fully paid; and of course I have the right to pay off the whole or any part of said sum of $5,000, with the accrued interest, at any time after the date hereof, but if I do so you will nevertheless be entitled to receive the sum of $1,250, or the sum of $2,500 in addition, depending upon whether I make any sale or other disposition of the above inventions or of any letters patent therefor within six months from the date hereof or after that period as above set forth.

‘Yours very truly,

E. G. Hoffman.'

Appeal from Supreme Court, Appellate Division, First Department.

John Kenneth Byard, of New York City, for appellant.

Thomas F. J. Connolly, of Port Chester, for respondent.

ANDREWS, J.(after stating the facts as above).

This action is brought to recover for a loan of $5,000 made by the plaintiff to one Hoffman.The defense is usury, the six-year statute of limitations and the six months' statute of limitations.

The loan was made, as the complaint alleges, upon the terms and conditions set forth in a letter written by Hoffman to the plaintiff.At the close of the trial both sides moved for the direction of a verdict.It was directed for the plaintiff.Upon appeal the Appellate Division reversed the judgment and dismissed the complaint, not on the facts, but as a question of law on the ground that the action was barred by the six months' statute of limitations.

[1][2] In this it erred.The trial court is presumed to have found all questions of fact raised by the evidence in favor of the plaintiff.To set in operation the short statute of limitations two things are necessary: First, the claim must be exhibited to the executor.‘Exhibited’ as here used means a presentation of the claim to the executor in writing and a demand for its payment.Ulster County Savings Institution v. Young, 161 N. Y. 23, 55 N. E. 483.Second, notice of rejection must be served upon the claimant.

[3]We do not hold that where a note, signed by the deceased, is presented to the executor, and a demand made for its payment, anything more is essential.But the demand must be clear and decisive.A general conversation from which contrary inferences may be drawn as to whether a demand for immediate payment was or was not intended, or as to whether the executor should have understood that such a demand was made, is not enough.

[4] Such the court might have found, and so is deemed to have found, was the situation here.The executor had advertised for claims.A conference was had between the claimant and the executor.Apparently the contract was produced.Its payment was discussed.A compromise, subject to the approval of the surrogate, was arranged.On his refusal, a notice was prepared stating that the claim filed with the executors was rejected.As a matter of law we cannot say these facts show such a presentation as the statute requires.

[5][6] The notice of rejection was addressed to the plaintiff and mailed to him at 127 Duane street, New York.The statute contemplates the service of such notice upon the claimant.If he receives it, probably it is not material how it reaches him.Sweeney v. City of New York, 225 N. Y. 271, 122 N. E. 243.But there must be some proof that it has been actually received.Even if a letter properly directed and stamped is properly mailed, the presumption of its receipt is one of fact...