Pond v. . Starkweather

Danforth, J. The pleadings state a variety of facts, but only a single point, viz.: a promise by defendants to pay B., plaintiff’s assignor, the value of a certain lot of eleven hundred boxes of seeds, upon condition that he would transfer and deliver them to the firm of H., S. & Co., performance by him, and on their part a breach. After evidence by the plaintiff, the defendants’ counsel moved" for a nonsuit upon the ground, in substance, that the alleged cause of action was unproven. Evidence had been given by B. (the assignor) that upon the occasion of negotiation between himself, of one part, as vendor, and the firm of H., S. & Co., of the other, as vendees, respecting the sale of a large quantity of seeds and other property at a lump price of $30,000, a member of the firm insisted that the seeds referred to in the com *414 plaint should be included; that he, B., refused to put them in; that thereupon these defendants, being the other two members of the firm of H., S. & Co., consulted privately and then “ asked” him, B., “to come to them;” he adds: They then told me if I would allow the eleven or twelve hundred boxes of seeds to go in under that $30,000 that they would pay for them, and I said, ‘ ‘ then with that agreement on your part that you will pay for those seeds I will sign a contract covering that.” They said they would pay for them at the same rate the other seeds were to go in at under the contract, and he, “ relying upon that agreement only,” included them in the bill of sale to EL, S. & Co., and they took possession of them; that they were worth at the prices mentioned in the contract, between $4 or $5 a box, and had not been paid for. This testimony was contradicted by the defendant, but if credited it sustained the complaint in every material point. Ho particular variance was pointed out upon the motion for a non-suit, and that now suggested is quite unimportant. It is also said for the appellant that the contract testified to by B. was without consideration, and this is upon the idea that as the defendants were members of the firm of EL, S. & Co., the benefit accrued to them in that relation, and not as individuals. That may be so; but B. would not have transferred or delivered the seeds to the firm, except the defendants, as individuals, requested him to do so, and as individuals promised to pay him therefor, and an inquiry is not to be made into their motive or the advantage derived by them. If B. had been under a prior legal obligation to make such transfer, his doing so would not support a new promise by the firm, but that is not this case. The promise relied upon is not the promise of the firm, nor was the contract with the firm signed until after the defendants’ agreement had been made. But suppose a liability had been first incurred by B. to the firm in reference to the property, his engagement with the defendants would still form a sufficient consideration to support their promise. A partner cannot make a valid legal contract with a firm of which he is a member, but this is because the same person *415 cannot be a party on both sides, and the principle in no way prevents one who, as member of a firm, has already contracted with another for the performance of a certain thing, to make as an individual a valid promise concerning the same matter. His capacity, as a person, is not merged in the partnership. Hence the defendants were competent to contract, and whether they did or not was upon the evidence a fair question for the jury. In view of the conflicting evidence and the circumstances of the case the verdict might well have been the other way, but it did establish the alleged agreement and its consideration, and we agree with the learned court at General Term, that no error was committed by the trial judge either in receiving evidence or submitting it to the jury for determination. The judgment appealed from should, therefore, be affirmed. All concur. Judgment affirmed.