Weinfeld v. Fr. Bergner & Co.

BISCHOFF, J. The contract in suit, for services to be rendered in making sales of the defendant’s goods, was stated to be made “between Henry J. and Alexander E. Weinfeld of the first part and Fr. Bergner & Co. of the second part,” and the character of the agreement, as made by the defendant with these two individuals jointly, appears throughout the two writings whereby that agreement is evidenced and which are made part of the complaint. These instruments, Exhibits A and B, are to be read together, according to their express terms, and the provision in Exhibit B that the advances now sued for should be made by the defendant to Henry J. Weinfeld must be taken in connection with the agreement as expressed in Exhibit A that “all payments * * * intended for the party of the first part are to be paid only to Henry J. Weinfeld.” The obvious intention to be spelled from the written agreement is that the benefits and obligations arising with reference to the advance payments were joint, and that Henry J. Weinfeld was simply the designated medium for the receipt of the moneys for joint account. Under these circumstances no cause of action in Henry J. individually is stated by the complaint; the right to enforce the agreement being one which accrued to the “party of the first part,” the two individuals, jointly, the defendant’s obligation being to answer to both upon the joint demand. Emery v. Hitchcock, 12 Wend. 156; Fisher Textile Co. v. Perkins, 100 App. Div. 19, 90 N. Y. Supp. 993. And the question was properly raised by demurrer upon the ground of a defect of parties. Id. Judgment reversed, and demurrer sustained, with costs to defendant in this court and in the court below. All concur.