Allen v. Borum

New York Supreme Court

Allen v. Borum

47 Barb. 22, 1866 N.Y. App. Div. LEXIS 115

DecidedJune 4, 1866

StatusPublished

This text of 47 Barb. 22 (Allen v. Borum) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Allen v. Borum, 47 Barb. 22, 1866 N.Y. App. Div. LEXIS 115 (N.Y. Super. Ct. 1866).

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Opinion

By the Court, Clerks, J.

None of the exceptions taken in this case seem to be .tenable. The only question to be determined is, was 'there a compromise of the debt which the defendant owed the plaintiff? This debt amounted to $695.02. On the 20th of March, 1863, the plaintiff authorized one John Simmons to accept, on his behalf, 45 per cent of this debt in a draft on Horton, Depew & Sons. In pursuance of this authority, Simmons received this draft from the defendant, amounting to $313, which, if accepted, was to be in full of all demands. The draft was not at first accepted by Horton, Depew & Sons. At this time, no doubt, the plaintiff was at liberty to revoke the settlement, and indeed it may be considered that he was under no obligation to recognize it, even without an express revocation. But he kept the draft, and, on the day it' fell due, when the defendant tendered payment of it, and asked for the draft, the plaintiff would neither return the draft nor accept payment of it. The draft was not produced at the trial, on the defendant’s demand. In the beginning of April, 1863, Mr. Horton, one of the firm on whom the draft was drawn, proceeded to Norfolk, where the defendant lived, and on his way received the draft in. question, from the plaintiff, with authority to settle it. Mr. Horton’s object in going to Norfolk was to purchase the stock of goods belonging to the, defendant, in Norfolk. Upon this purchase between Horton and the defendant, Horton produced this draft; that amount was charged to the defend[26]*26ant, and allowed in the settlement of the purchase; and the draft was retained by Horton, who agreed to pay over the amount to the plaintiff on his arrival in Hew York.

[New York General Term, June 4, 1866.

On this evidence the jury decided that there was a compromise of the plaintiff's debt. Although the first arrangement did not amount to a compromise, the whole transaction, in my opinion, did; and the defendant is entitled' to judgment on the verdict, with costs.

Sutherland, Clerke and Geo. G. Barnard, Justices.]

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By the Court, Clerks, J.

None of the exceptions taken in this case seem to be .tenable. The only question to be determined is, was 'there a compromise of the debt which the defendant owed the plaintiff? This debt amounted to $695.02. On the 20th of March, 1863, the plaintiff authorized one John Simmons to accept, on his behalf, 45 per cent of this debt in a draft on Horton, Depew & Sons. In pursuance of this authority, Simmons received this draft from the defendant, amounting to $313, which, if accepted, was to be in full of all demands. The draft was not at first accepted by Horton, Depew & Sons. At this time, no doubt, the plaintiff was at liberty to revoke the settlement, and indeed it may be considered that he was under no obligation to recognize it, even without an express revocation. But he kept the draft, and, on the day it' fell due, when the defendant tendered payment of it, and asked for the draft, the plaintiff would neither return the draft nor accept payment of it. The draft was not produced at the trial, on the defendant’s demand. In the beginning of April, 1863, Mr. Horton, one of the firm on whom the draft was drawn, proceeded to Norfolk, where the defendant lived, and on his way received the draft in. question, from the plaintiff, with authority to settle it. Mr. Horton’s object in going to Norfolk was to purchase the stock of goods belonging to the, defendant, in Norfolk. Upon this purchase between Horton and the defendant, Horton produced this draft; that amount was charged to the defend[26]*26ant, and allowed in the settlement of the purchase; and the draft was retained by Horton, who agreed to pay over the amount to the plaintiff on his arrival in Hew York.

[New York General Term, June 4, 1866.

On this evidence the jury decided that there was a compromise of the plaintiff's debt. Although the first arrangement did not amount to a compromise, the whole transaction, in my opinion, did; and the defendant is entitled' to judgment on the verdict, with costs.

Sutherland, Clerke and Geo. G. Barnard, Justices.]

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Bluebook (online)

47 Barb. 22, 1866 N.Y. App. Div. LEXIS 115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-borum-nysupct-1866.