Hartford Fire Insurance v. Dickinson

We think the answer in this case sufficiently alleged payment of the plaintiff’s claim, in the 9th, 11th, and 13th paragraphs thereof, and that the findings of the referee are sustained by the evidence. The finding is that Mrs. Blauvelt, as the agent of James H. Blauvelt, paid the claim in suit, and the same was received by the plaintiff in satisfaction thereof. The finding is explicit that the intention of the parties was to have the payment discharge the obligation. All the surrounding circumstances corroborate this theory. Mrs. Blauvelt and Polhemus succeeded to the business, and met the plaintiff to perfect the arrangements to go on with the business. Mrs. Blauvelt testifies she was authorized to act for her husband, who had the right to pay the debt, and that she did pay a part of it, and Polhemus the balance. There is no denial of the testimony given by Mrs. Blauvelt and defendant Dickinson, and it is evident from the conduct of the parties that a full settlement was made at the time the business was turned over to the new firm of Blauvelt & Co.

There are many exceptions taken, but none of sufficient merit to reverse the judgment. The .result is just, and the judgment must be affirmed, with costs.

DYKMAN, J., concurs.

(dissenting.) The facts are not disputed. The defendant and James H. Blauvelt were partners in business at Nyack, Rockland county, as insurance agents. The company failed, owing the plaintiff a considerable sum for premiums collected. The wife of Blauvelt applied to the plaintiff to become its agent, and agreed, in consideration of being appointed, to pay the firm debt. The company agreed to and did appoint her agent. She paid a portion of the debt in cash, and gave her note for the remainder, which she has not paid. The firm had no connection with the transaction, and there was no agreement, even, that the wife’s note should be accepted in satisfaction of the firm’s debt, The referee, on these facts, erroneously found that the firm debt was paid by the unpaid note. There was no payment,—probably, not even so far as the cash payment by the wife. The debt was not discharged. Bank v. Pierce, 137 N. Y. 444, 33 N. E. 557. The judgment should be reversed, and a new trial granted; costs to abide: event.