Lasher v. . Williamson
Cases that cite this one
24 later published cases cite this decision.
- Walcutt v. Clevite Corp. (N.Y. 1963)
- Elliott v. . Brady (N.Y. 1908)
- D. M. Osborne & Co. v. Bryce (U.S. Circuit Court for the District of Eastern Wisconsin 1885)
- General Motors Acceptance Corp. v. Kalkstein (Appellate Division of the Supreme Court of New York 1984)
- Kellman v. Bierman (Appellate Division of the Supreme Court of New York 1974)
- M. Lowenstein & Sons, Inc. v. Weinbaum (Appellate Division of the Supreme Court of New York 1965)
- United States v. Morley Const Co. (District Court, W.D. New York 1935)
- Union Indemnity Co. v. Goodman (Ala. 1932)
- William Segar, Inc. v. 1967-1975 Ocean Avenue Realty Corp. (New York Supreme Court 1926)
- Ward v. Textile Commission Co. (Appellate Division of the Supreme Court of New York 1910)
- Patti v. United Surety Co. (City of New York Municipal Court 1908)
- Veriscope Co. v. Brady (City of New York Municipal Court 1902)
- Fleitmann v. Ashley (Appellate Division of the Supreme Court of New York 1901)
- Fleitmann v. Ashley (Appellate Division of the Supreme Court of New York 1901)
- Joyce v. Cockrill (6th Cir. 1899)
- Scholze v. Steiner (Ala. 1893)
- Collamer v. Farrington (New York Supreme Court 1891)
- Moore v. Prentiss Tool & Supply Co. (Superior Court of New York 1891)
- Springfield Engine & Thresher Co. v. Park (Ind. Ct. App. 1891)
- Moore v. Prentiss Tool & Supply Co. (The Superior Court of New York City 1891)
- Tompkins v. Garner (City of New York Municipal Court 1889)
- In re Reed (New York Surrogate's Court 1887)
- Bookstaver v. . Jayne (N.Y. 1875)
- Bookstaver v. Jayne (N.Y. 1875)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion of the Court
The defendants and appellants were sureties for one Gibbs, to whom the plaintiff had executed a lease under seal of certain premises, and they had by an instrument under seal covenanted that Gibbs should pay the rent, and that if he should be in default they would pay the deficiency. In answer to the plaintiff's action for the unpaid rent the defendants gave evidence tending to show that, as part of the arrangement between Gibbs and the plaintiff, the latter had verbally agreed with Gibbs to furnish to him during the period of the lease a certain quantity of property to be stored upon the described premises at an agreed price, and that he had furnished only a part of the quantity promised, and failed to furnish the residue. Assuming, in favor of the appellants, that no objection to this proof can be sustained on the ground that it is supported only by unwritten evidence, I am yet of opinion that it gives them no defence or counter-claim available in this action. It was the promise to furnish the storage which may be regarded as forming part of the consideration for the agreement of Gibbs. The breach of that promise gave him a cause of action against the plaintiff, but this cause of action in favor of Gibbs cannot be available to the appellants. It belongs to Gibbs and not to them. The case falls within the principle of Gillespie v. Torrance (
The non-performance or partial performance of Lasher's engagement to Gibbs is not to be regarded as a failure of consideration, but as an independent cause of action, which Gibbs, and he only, may assert. It is in his election to determine whether it shall be used defensively, or whether he will bring his own action for the damages, or whether he will forego his claim altogether. The defendants have no control over him in this respect and cannot borrow and avail themselves of his rights.
The judgment must be affirmed.
All concur.
Judgment affirmed. *Page 621
Case-law data current through December 31, 2025. Source: CourtListener bulk data.