Weber v. Williams & Morford Co.

LEHMAN, J. [1] The plaintiff has recovered a judgment upon a check for $100, made and delivered by the defendant. At the trial the plaintiff rested after the check was introduced in evidence. The defendant then produced evidence to establish its defense of want or [620] failure of consideration. This evidence was not impeached or contradicted, and for the purposes of this appeal must be accepted as true. [2-4] It appears that the defendant on April 29th had agreed to accept a five-year lease of premises owned by the plaintiff. The parties met on that day, and a written lease was prepared. That lease contained clauses providing that certain repairs should be made by ( the landlord, and provided further that the tenant should pay “$1,000 on the signing of the lease, receipt whereof is hereby acknowledged.” While the parties had apparently practically approved the terms of the lease, the defendant’s representative refused to sign the written lease until he had a chance to see the premises again. After some talk about giving a deposit, the defendant made and delivered the check in suit and received a written receipt as follows; “Received from Williams and Morford the sum of one hundred dollars (100.00) on deposit on contract 218/20 W. 65 street; balance $900 to be paid on signing of lease and agreement on April 30, 10 a. m., at Senior & Stout office, 81 W. 50 St. Senior & Stout. “Thomas T. Devine.” The next day the defendant stopped payment of the check and apparently refused to take the lease. The most favorable view for the plaintiff of this evidence is that the deposit was given as security for defendant’s fulfillment of its agreement to take a lease. Under similar circumstances, this court has held, in the case of Weinberg v. Greenberger, 47 Misc. Rep. 117, 93 N. Y. Supp. 530, per Scott, J.; “There is nothing in the receipt to justify a finding that the deposit was given as a penalty, or as liquidated damages in case of a refusal. It was therefore a deposit as security for actual damage, if any, suffered by the defendant by reason of plaintiff’s default. No such damage was pleaded or shown. It must be assumed therefore, for the purposes of this appeal, that no such damage was suffered. Hence the contingency against which the deposit was made did not arise, and the plaintiff is, upon the facts shown in the present record, entitled to a return of the deposit.” It is true that there is an apparent distinction between that case and the case under consideration, in that in the earlier case the tenant was suing for a deposit, and the defendant was required to plead and prove actual damage, while in this case the landlord is suing upon the check which presumptively is a valid obligation, and the burden of showing that there was no consideration- rests upon the defendant. Where, however, as in this case, it shows that the check was given as a deposit only, it is not necessary for it to prove also the negative, that it was not given as liquidated damages in case of refusal, and that no actual damages have been suffered. These are matters which the holder of the check should affirmatively prove just as she would be required to prove them if she had received actual cash and the proposed tenant were suing for its return. The proposed tenant logically must be considered as having established a prima facie case of want of consideration by proof that would be sufficient to establish a prima facie case in an action brought by it for money had and received. Judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.