Kirchner v. New Home Sewing Mach. Co.
Decision Date | 04 October 1892 |
Citation | 135 N.Y. 182,31 N.E. 1104 |
Parties | KIRCHNER v. NEW HOME SEWING MACH. CO. |
Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, second department.
Action by A. Kirchner against the New Home Sewing Machine Company to recover damages for a forcible eviction from his premises and injury to his property. From a judgment of the general term (16 N. Y. Supp. 761) affirming a judgment entered on a verdict for plaintiff, and an order denying a motion for a new trial, defendant appeals. Reversed.
M. L. Towns, (Josiah T. Marean, of counsel,) for plaintiff.
Lehmaier & Williams, (George S. Hamlin, of counsel,) for defendant.
The plaintiff alleges as the grounds of his cause of action a forcible eviction by the defendant from premises occupied by him as a store at 282 Grand street, Brooklyn, December 3, 1887, and a forcible detention of the premises from him until February 8, 1888, and the injury to his stock of goods, fixtures, machinery, and other personal property in the store at the time defendant took possession, which were either removed, destroyed, or seriously damaged by the acts of the officers and agents of the defendant. He also claims that his business was broken up by this unlawful interference by the defendant. The plaintiff gave evidence tending to establish these various grounds of recovery. The defendant denied the commission of the trespass, and set up as an affirmative defense, and proved upon the trial, a general release under seal, executed and acknowledged by the plaintiff February 8, 1888. This instrument in terms absolved the defendant from all liability for any demand or cause of action which the plaintiff might have against it, either upon contract or in tort, and especially for all trespasses committed by it, or damages for which it might be responsible to the plaintiff. The cause of action in suit here then existed, and the release was, upon its face, sufficiently comprehensive to include it within the scope of its operation. It contained at the end a special provision to the effect that it was understood between the parties that the plaintiff should not interfere in any manner with any sales of sewing machines theretofore made by him for the defendant, nor with the collection of any amounts due on such machines. One of the points in controversy between the parties was the right of the plaintiff to control such sales and make the collections. When the release was executed the plaintiff had claims against the defendant amounting to $2,500 for services rendered and for sums due him for sewing machines sold, the proceeds of which had been collected or received by the defendant. The defendant had claims against the plaintiff amounting to $2,300, and a bill of sale of a part of the property in the store to secure upwards of $1,000 of this indebtedness. There was also an action pending in the city court, brought by the plaintiff against the defendant in October, 1887, for an accounting, in which he claimed that the defendant owed him $940 after liquidating his indebtedness to it; and in this action he sought to have the defendant perpetually restrained from interfering with the personal property, the bill of sale canceled, and a reconveyance directed to him. A preliminary injunction order had been granted in the action, and a proceeding was then pending to punish the defendant for a contempt of court in violating it. There had been a long and bitter contention between the parties, and the defendant had repeatedly caused the arrest of the plaintiff upon criminal charges, which had invariably been dismissed as not sustained; and it is to be inferred from the evidence that there was then pending in some court an action brought by the plaintiff to recover damages for false imprisonment or malicious prosecution, because of these groundless criminal proceedings. As one of the considerations of the release by the plaintiff to the defendant, the latter contemporaneously executed a like general release to the plaintiff.
The plaintiff also claims that a part of the consideration of his release was the restoration to him of his store and personal property, and that he then had no knowledge that any of the property had been injured, destroyed, or disposed of by the defendant. He had been forcibly evicted and kept out of possession of the store where the property was, by the defendant's agents, and, while he had obtained judgment against them in a proceeding for forcible entry and detainer in the police court, they had procured from the landlord the execution of a new lease to another employe, and he was thus prevented from entering upon the premises, and ascertaining the condition of the personal property. He expected when he regained possession of it, upon the execution of the release, to find it all still in the store, and in as good order as when the defendant unlawfully seized it. It is unnecessary to go further into the details of the voluminous proofs in the record, except to note that there is evidence which tends to show that the plaintiff did not intend to discharge the cause of action upon which this suit was brought, and that the defendant's officers and agents did not intend to include it in the release, or, if they did, that they concealed such intention from the plaintiff, and also concealed from him the condition of the personal property, and that the plaintiff understood that the release only embraced the actions then pending, and that the defendant knew that such was his understanding of its contents and effect. The trial court, following the opinion of the general term upon a former appeal, (13 N. Y. Supp. 473,) charged the jury that, if the only subject of negotiation between the parties was the release by the plaintiff of his rights under the action in the city court, and his claim for false imprisonment, then the general terms of the release would not be allowed to operate upon any right of action which was not covered by the particular clause, and was not mentioned in the preliminary discussion that led up to the release. This proposition, we think, does not correctly state the law applicable to this branch of the case. What is here denominated ‘the particular clause’ apparently has reference to the concluding paragraph of the instrument, which, as we have seen, is a declaration that the plaintiff shall not interfere with certain sales which had...
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