Class Journal Co. v. Valveless Inner Tube Co.

Appellate Terms of the Supreme Court of New York

Class Journal Co. v. Valveless Inner Tube Co.

130 N.Y.S. 244

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 29, 1911

StatusPublished

This text of 130 N.Y.S. 244 (Class Journal Co. v. Valveless Inner Tube Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Class Journal Co. v. Valveless Inner Tube Co., 130 N.Y.S. 244 (N.Y. Ct. App. 1911).

Pincite

Opinion

SEABURY, J.

The plaintiff sued for services performed under a contract made with the defendant for inserting advertisements in two publications, known as “The Automobile” and “Motor Age,” owned by the plaintiff. One Wishart, who was then president of the defendant company, signed the defendant’s name to the contract, by himself as president. The fact that the plaintiff performed his contract was not disputed upon the trial. It was proved that the plaintiff had brought an action against Wishart individually, and had taken judgment against him by default. This judgment was subsequently vacated, and the action was discontinued, after Wishart had paid $700. The plaintiff credited the $700 it had received from Wishart on account of the defendant’s indebtedness, and sought to recover the balance due, amounting to $609.80 in this action. The learned court below directed a verdict in favor of the defendant, on the ground that, the plaintiff having elected first to sue the agent, such election could not be recalled, and no action could be maintained against the principal.

We think that the doctrine of election of remedies, which the learned court had in mind, has no application to such a case as this. Here Wishart was the disclosed agent of the defendant, and the plaintiff had no cause of action against him. The only cause of action which existed in the plaintiff's favor under the contract sued upon was [245]*245against this defendant. The plaintiff had no choice of inconsistent remedies against the defendant, and made no election. The fact that the plaintiff sued the wrong party and received a part of the amount due upon the contract is entirely immaterial in this action, since the defendant is given credit for the amount which the plaintiff has already recovered. The fact that defendant’s agent paid something on account of the defendant’s debt does not relieve the defendant from its obligation to pay the balance due. Henry v. Herrington, 193 N. Y. 218, 86 N. E. 29, 20 L. R. A. (N. S.) 249.

Judgment reversed, and a new trial ordered, with costs tó the appellant to abide the event. All concur.

Free access — add to your briefcase to read the full text and ask questions with AI

SEABURY, J.

The plaintiff sued for services performed under a contract made with the defendant for inserting advertisements in two publications, known as “The Automobile” and “Motor Age,” owned by the plaintiff. One Wishart, who was then president of the defendant company, signed the defendant’s name to the contract, by himself as president. The fact that the plaintiff performed his contract was not disputed upon the trial. It was proved that the plaintiff had brought an action against Wishart individually, and had taken judgment against him by default. This judgment was subsequently vacated, and the action was discontinued, after Wishart had paid $700. The plaintiff credited the $700 it had received from Wishart on account of the defendant’s indebtedness, and sought to recover the balance due, amounting to $609.80 in this action. The learned court below directed a verdict in favor of the defendant, on the ground that, the plaintiff having elected first to sue the agent, such election could not be recalled, and no action could be maintained against the principal.

We think that the doctrine of election of remedies, which the learned court had in mind, has no application to such a case as this. Here Wishart was the disclosed agent of the defendant, and the plaintiff had no cause of action against him. The only cause of action which existed in the plaintiff's favor under the contract sued upon was [245]*245against this defendant. The plaintiff had no choice of inconsistent remedies against the defendant, and made no election. The fact that the plaintiff sued the wrong party and received a part of the amount due upon the contract is entirely immaterial in this action, since the defendant is given credit for the amount which the plaintiff has already recovered. The fact that defendant’s agent paid something on account of the defendant’s debt does not relieve the defendant from its obligation to pay the balance due. Henry v. Herrington, 193 N. Y. 218, 86 N. E. 29, 20 L. R. A. (N. S.) 249.

Judgment reversed, and a new trial ordered, with costs tó the appellant to abide the event. All concur.

Cite This Page — Counsel Stack

Bluebook (online)

130 N.Y.S. 244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/class-journal-co-v-valveless-inner-tube-co-nyappterm-1911.

Opinion

Related

Cite This Page — Counsel Stack