Bell v. Pfadenhauer

Stated as concisely as possible, the contents of the amended complaint may be summarized as follows :

The plaintiff recovered a judgment against. Elka Wiedhopf for one hundred and seventy-live dollars and ninety-three cents. This judgment became a lien on certain Brooklyn real estate. The title to such real estate was taken by the defendants and one Lina Muller, to whom it was conveyed under the firm name of Pfadenhauer, Muller & Co., who therevqion assumed the debts owed by Elka *245Wiedhopf, “ as by reference to the record of said conveyance when produced will more fnlíy and at large appear.” The firm of Pfadenhauer, Muller & Co. was dissolved. Pursuant to an agreement with the defendants the plaintiff’s judgment was compromised at one hundred and fifty dollars, and the defendants paid to the plaintiff seventy-five dollars on account thereof, leaving seventy-five, 'dollars due and unpaid.' The defendants as copartners, by a signed, instrument in writing, agreed to pay this balance of seventy-five; dollars as follows : “ That if a certain promissory note for said sum to be given by said Lina R. Muller to said jfiaintiff was not paid by her in thirty days from its date, that they would pay the same in consideration of value to them and assignment of said original judgment to be given to them ” by plaintiff. In pursuance of this agreement Lina R: Muller made and delivered to the plaintiff her note for seventy-five dollars, payable in thirty days, but it was dishonored at maturity, and this note remains unpaid, although payment of the same was duly demanded before the commencement of the present action., From the memorandum ' filed by the learned county judge who, overruled the demurrer,' it is apparent that he regarded the agree-, ment of Pfadenhauer, Muller & Co. to assume the debts of Elka, Wiedhopf as the gravamen of the action. He evidently deemed, the reference to the record of the conveyance to Pfadenhkuer, Muller & Co. as a sufficient allegation that this agreement of assumption was in writing, and, if so, the defendant Lina R. Muller, one of the persons severally liable upon it, was not a necessary party defendant. (Code Civ. Proc. § 454.)

.Upon the .present appeal, however, tlie defendants insist upon an entirely different construction of the complaint from that put upon it in the court below. It is argued in their behalf that the plain purpose of the suit is to enforce, not the agreement of Pfadenhauer, Muller & Co. to pay Elka Wiedhopf’s debts, but the agreement of the defendants to pay the balance of seventy-five dollars still due in ■the event- that Lina R. Muller’s note for that amount should not be paid at maturity. The latter agreement stated in terms that it was made in consideration of value to the defendants and the assignment of the original judgment to be given to them by the plaintiff; and they insist that the assignment of the judgment was a condition precedent to the payment of the seventy-five dollars on their part, *246and that the complaint is fatally defective, because it does not allege that this condition precedent has been performed.

The appellants are probably correct as to the intent of the pleader. The affidavit of the person, who verifies the complaint expressly declares that the action is founded upon a written instrument for the payment of money only. But even if this be so, it does not follow that the plaintiff was bound.to assign the judgment to the' defendants before they complied with the terms of their contract by which they undertook to pay the balance of seventy-five dollars. The indebtedness to the' plaintiff had been assumed by a firm of three persons. The defendants were, two of those persons. ■ By a compromise between them and the plaintiff the' amount of the plaintiff’s claim was reduced to one" hundred and fifty dollars. The defendants paid half of this amount and agreed to pay the other half if Lina R Muller, .the other member of the former copartnership of three persons by which the indebtedness was assumed, did not pay it herself by means of her promissory note. She did not pay it, and hence the defendants are liable, unless the statement in their agreement to pay, to the effect that they would do so in consideration of value and. the assignment of the original judgment, imported an obligation on the plaintiff’s part to give the defendants the-assignment before' they paid him the balance due. We do not think this was required by the terms of the contract as stated in the amended complaint. The plaintiff, by means of the judgment, had a lien upon the lands which had been conveyed to Pfadenhauer, Muller & Co., and he would naturally desire to retain that lien until the claim secured by that judgment had been paid. The agreement between him and the defendants obligated him to assign the judgment after the payment of the balance of seventy-five dollars, and the defendants could have enforced this obligation if he refused to comply with it ; but we do not think that he was bound to execute or deliver the assignment. until after they had performed their part of the agreement.

For these reasons we think that the complaint was properly upheld as sufficient.

All concurred.

Interlocutory judgment affirmed, with costs.