Stern v. Rosenfeld

159 N.Y.S. 1144

Opinion

BIJUR, J.

Plaintiff sued to recover hack a deposit of $150 made by him on account of the purchase price under an agreement whereby plaintiff agreed to purchase and defendant to sell a certain stock of goods. The receipt for the $150 given by defendant contained the sentence: “The stock is free and clear of all incumbrances.” The contract provided: “The said store is to be delivered to the said Jacob Stern [plaintiff] free and clear of all debts, claims and incumbrances.” It is difficult to understand the theory upon which plaintiff has been permitted to recover. He testified that when he called to obtain the balance of the stock, and “when I made out the receipt, he [defendant] refused to sign the receipt free and clear of all debts and broker’s fees,” etc.; and again: “I asked him to sign a receipt the way he ought to sign it, free and clear, that the merchandise in the store whs free and clear.” “He refused to sign it.” Whereupon plaintiff refused to carry out his own_ agreement. Apparently also respondent relies on the fact that defendant had a number of creditors at the time of this sale, though just what bearing that has on the rights of the respective parties to the agreement is not clear. Judgment reversed, and new trial ordered, with $30 costs to appellant to abide the event. All concur.