Niblock v. Sprague
| Decision Date | 10 January 1911 |
| Parties | NIBLOCK v. SPRAGUE. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Fourth Department.
Action by Peter Niblock against Homer Sprague. From a judgment of the Appellate Division (134 App. Div. 910,118 N. Y. Supp. 1127), affirming a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.M. Fillmore Brown, for appellant.
Walter W. Chamberlain, for respondent.
This is an action by the payee against the maker of two promissory notes, for $150 each, payable three months after the date thereof, which was October 1, 1901, and alleged in the complaint to have been made, executed, and delivered to the plaintiff on that date.
The answer denies the making, execution and delivery of the notes as alleged in the complaint, but admits that the defendant signed the notes and delivered the same under the following circumstances: The parties to this action had been copartners in the business of farming. The partnership was dissolved on December 31, 1900, by a paper writing which is stated to be attached to the answer, but does not appear in the record. The plaintiff and defendant thereafter entered into a further agreement whereby, in consideration of whatever the defendant owed the plaintiff for work done since the dissolution, the defendant agreed to turn over, and the plaintiff agreed to receive, a pair of horses, a lumber wagon, a double harness, a pair of blankets, and a mow of hay. In addition, the defendant agreed to give the plaintiff $300, which, however, was not to be paid until all the partnership debts were paid by the defendant. The defendant was to execute and deliver to one Oliver Velzey the promissory notes set forth in the complaint, which were to be held by Velzey until the payment of the partnership debts by the defendant, when, at the defendant's direction, Velzey was to indorse and deliver them to the plaintiff; but ‘the said notes were to have no inception until the plaintiff had kept his agreement, said partnership debts were paid, and a direction by the defendant to said Velzey to deliver said notes to the plaintiff.’ The answer further alleges that the notes were executed and delivered to Velzey accordingly; that the plaintiff removed all the property which has been mentioned, and likewise a wagon worth $50, without the defendant's knowledge or consent; that the plaintiff refused to return this wagon, whereupon defendant notified him that he had failed to keep his agreement, and the defendant would not pay the $300; but that thereafter, in May, 1906, the plaintiff wrongfully, and without the defendant's knowledge or consent, obtained possession of the promissory notes. Finally, there is an averment that a portion of the partnership indebtdness remains unpaid, and a denied of the allegation in the complaint that the plaintiff is the owner of the notes in suit.
Upon the trial counsel for the...
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Waters v. Byers Bros. & Co.
...of this and other courts. Ware v. Smith, 62 Iowa, 159, 17 N. W. 459: Johnston v. Cole, 102 Iowa, 109, 71 N. W. 195; Niblock v. Sprague, 200 N. Y. 390, 93 N. E. 1105. If the agreement was as testified by Hinkle, there was never any authorized delivery of the note, and it never became binding......
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Barton v. Farmers' State Bank
...118 N. W. 841; Waukee Savings Bank v. Jones, 179 Iowa, 261, 159 N. W. 691; Norman v. McCarthy, 56 Colo. 290, 138 P. 28; Niblock v. Sprague, 200 N. Y. 390, 93 N. E. 1105; Smith v. Doetterweich, 200 N. Y. 299, 93 N. E. 985, 33 L. R. A. (N. S.) 892, 894. See, also, Schmidt & Story v. Bank of C......
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... ... Nat. Bank v ... Ewing, 131 N.Y. 506, 30 N.E. 501, 27 Am.St.Rep. 615; ... Higgins v. Ridgway, 153 N.Y. 130, 47 N.E. 32, ... approved in Niblock v. Sprague, 200 N.Y. 390, 93 ... N.E. 1105; Grannis v. Stevens, 216 N.Y. 585, 111 ... N.E. 263 ... Defendant ... moved for judgment on ... ...
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...was conditional and that the conditions of delivery have not been met (Grannis v. Stevens, 216 N.Y. 583, 111 N.E. 263; Niblock v. Sprague, 200 N.Y. 390, 93 N.E. 1105; Higgins v. Ridgway, 153 N.Y. 130, 47 N.E. 32). It should also be noted that there are cases which have permitted parol evide......