Levien v. Levi

McAdam, J. The plaintiff and the defendant Levi owned property at Colchester, Connecticut, in partnership. The plaintiff agreed to transfer his interest to his partner for $300, and executed a deed thereof to him. ’ In consideration of the delivery of this deed, the defendants signed an agreement to redeem certain jewelry belonging to the plaintiff and which he had pawned for $75. The agreement was signed first by Levi, ,and afterward, before the delivery of the deed, and as a condition of its delivery, by the defendants Hyman Okun and Morris Okun. These latter defendants claim that. they merely signed as-witnesses, but this is denied by the plaintiff, and- there is nothing in the paper to corroborate their contention; on the contrary, the paper was witnessed by E. S. Day, in whose office the contract was drawn, and the justice must have found it was signed by the three defendants as principals in order to procure the delivery of the deed. The [81] defendants Okun were apparently interested in having the deed delivered to Levi, for he immediately thereafter executed a deed to them, for the same farm. Bertha Levien, the- plaintiff’s daughter, testified that the plaintiff and Levi were in partnership in respect to the farm; that they could not agree; that one of the Okuns was a brother-in-law of Levi, and an understanding was arrived at between the defendants and the plaintiff by which Levien was to receive $300 in cash from Levi as well as the jewelry. From the entire testimony it is clear that the plaintiff' was unwilling to trust Levi, with whom he had disagreed, and that he would not deliver the deed until the Okuns joined in the contract with Levi to return the jewelry to the plaintiff, which was to be his, and his alone. By the contract the defendants agreed to return to the plaintiff the jewelry that was pawned. While it was pawned for the joint benefit of the plaintiff and Levi, it is plain that it was to become the sole property - of the plaintiff, and that is why the contract was made to redeem and return the jewelry to him. It is contended by the defendants that as the value of the jewelry was not proved no legal measure of damages was established. This is not so.. The plaintiff was liable to the pledgee for $75, the amount, ,of the loan made, and was interested in having the obligation discharged. The defendants, in effect, agreed to satisfy the debt, and not only redeem but return the property to the plaintiff. A right of action accrued upon the breach of the undertaking, and the measure of damages is the. amount agreed to be .paid "(Port v. Jackson, 17 Johns. 246; Churchill v. Hunt, 3 Den. 322; Weddle v. Stone, 12 Ind. 625; 2 Sedg. on Dam. [7th ed.], 4, 5), and this result follows whether the plaintiff himself first discharged the debt or not. Ibid. The action was founded on the special promise to pay, so that .the judgment, which was for $75, is right, and must he affirmed, with costs. Daly, P. J., and" Bischoff, J., concur. Judgment affirmed, with costs.