Ralph v. Eldredge

• Decision Date: 24 March 1893
• Citation: 33 N.E. 559,137 N.Y. 525
• Parties: RALPH v. ELDREDGE et al.
• Court: New York Court of Appeals Court of Appeals

137 N.Y. 525

33 N.E. 559

RALPH

v.ELDREDGE et al.

Court of Appeals of New York.

March 24, 1893.

Appeal from supreme court, general term, third department.

Action by Murray N. Ralph against Loren D. Eldredge and others to recover on a bond executed by defendants. From a judgment of the general term (11 N. Y. Supp. 840) affirming a judgment in favor of defendant dismissing the complaint, plaintiff appeals. Reversed.

Jhon C. Keeler, for appellant.

Almeron Z. Squires, for respondent Eldredge.

V. P. Abbott, for respondent Seymour.

PER CURIAM.

Plaintiff and the defendant Eldredge had been copartners, and, upon a dissolution of the copartnership, Eldredge took over the stock of goods and fixtures, and plaintiff took a transfer of certain notes, accounts, and claims belonging to the firm. A bond was given to plaintiff, upon which Eldredge was principal and the defendant Seymour was surety, and which was conditioned as follows: ‘The condition of this obligation is such that if the above bounden Loren D. Eldredge, his heirs, executors, or administrators, shall and do well and truly pay or cause to be paid unto the above-named Murray N. Ralph, his certain attorney, executors, administrators, or assigns, one half of the amount of notes, accounts, and claims of the late firm of Eldredge & Ralph, assigned by the said Eldredge to Murray N. Ralph, that shall prove to be uncollectible, if any such there be, with interest in the amount thereof from the date hereof, without fraud or delay, then the preceding obligation to be void; otherwise, to remain in full force and virtue.’ This action was upon the bond, to recover one half of what plaintiff alleged had proved uncollectible of the choses in action transferred to him. Upon the trial the referee excluded evidence offered by the plaintiff to show the financial condition of the various debtors, and that they were not, and had not been since the assignment of the claims, of financial ability to pay the demands upon them. He held that no right of action accrued to the plaintiff against the defendants before the prosecution of the claims to judgment, and the issue and return of executions unsatisfied. This view has been sustained by the general term, and the bond was there construed as a strict guaranty of collection. This construction is based upon the meaning attached to the words ‘prove uncollectible,’ which seemed to the court to contemplate some legal process to determine that a claim was...