The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-04-23
Marine Court.
Before Hon. Judge Mccarthy.
INTERESTING DECISION,

" dshinTcn A. Cfonk rs. Ben5dmin Gdbrdih.-The
plaintiff claimed slc6 "a for money received by the de-
PENDANT, to his the Plaintiffs The defen ant plead
ca general denial with special setting forth
the facts OF he case The circumstances out OF which
the action folowOn the goth Of February
last the rlantn made written contract to sell to the
defendant house and lot in this city and agreed to con-
vey the premises in fee from all except
mortgage, dated November 1s 1854 bearing IA. err
est seven per cent and also agreed to nav The interest
said mortgage from the date thereof The defendant
agreed to purchase on tie above terms, and to
the mortgage as portion OF the consideration money.
On searching the title 1t appeared by the recorded deeds
that Samuel L. Buttcrv was the actual owner OF
the premises and that SJ in arrear for water
rent The defendant communicated these facts to the
plaintiffs attorney and counsel Edward p Clark ESQ, Of
the firm of Clark Cornwall Mr.. clark admitted them,
but added there was some arrangement existing between
the plaintiff and Mr Buttcrworth and that Mr. Butter
worth would convey the premises to tho defendant The
defendant raised no objection and attended at Mr..
Clarks Office to pay his money and TO take his deed
There was then due for interest on the said mortgage
Sloo e4 the defendant inquired what he had 20 ray Mr.
Clark informed him the amount of purchase money
agreed on less the amount due for interest and water
rent for the amount claimed the defendant gave
check payable to Mr. Butterworth, and received in
change the deed of Butterworth and wife for the pre-
misses. thus ended the business, the defendant
thought but the following day he received request
there S W. Cronk the father Of the plaintiff, and Mr.
Clark Mr.. Clark stated tbaton the settlement of tile
previous day mistake had been made-that he, Mr.
Clark, ought not to have allowed the defendant
Slo6 "a for the interest the mortgage. The defend
ant replied that il there was indeed any mistake,
lie would certainly rectify it, He would look at
his contract and he to pay Sl06 o. he would pay
IT, On referring to the contract he found the plaintiff
had expressly agreed to pay the interest and
quonty the defendant refused pay it. The plaintiff
then commenced this action end endeavored to sustain
il solely the testimony Of the Plaintiff Is father s. W.
fed that when they had the defendant alone with them
il Mr.. Clark's Office, he had promised to pay the
claimed The defendant, however by cross-examination
OF the plaintiff father and Of Mr. Clark, and by the
animation of Samuel /. Buterworth, brought all the
facts OF the transaction 70 the effect above stated before
The Court and this additional facttha the interest of
the plaintiff in the premises only assignee of
contract made by said Buttcrwortb with plaintiff .
when he had built honse for said But.erworth aud
which house WIS not yet finished.
4. p. Clark, for rlainGJ. Townshend, for defendant
Mccarthy. udge-This action was brought to recover
from the defendant money alleged to have been paid him
by mis;aio other words, is the old action for money
lad and received Waving the question reach sub
santial justice between the PARTIES of whether the form
of action Is rrorer proceed to the true merits Of the
conro, ersy ulay here rcmark that the whole evil
dence discoses DAT the plaintiff had than an
assignment 70 himself Of coatrae of sale of the prcmi
made to $ W. Cronk ana IL plaatid y agree.
ment with The Defendant amounted to anything it Is
more than assignment by him to the defendant of
his interest in the contract assigned to himself The
contract between paintif and defendant in its terms
pressly stipuates that the plaintiff himself IL pay the
interest upon the mortgage to alsey from its date.
Then she dendan to purchase the house and lot
for so much cash, and to the payment of the
Halsey mortgage nothing is said about his paying any
interest then due. But admitting for moment
ito pass beyond that poinD, that the plaintiff
could, under the whole evidence, at all
il apparent that he cannot aegc that the defendant
pay the interest then due the plaintiff himself
bad contracted TO do 1T all events could not claim
that defendant was to pay until he the pllintin had
performed the conditions which sense and the
legal construction of the instrument render precedent
to any ,,erfom by the defendant Did the plaintiff
s,ll and c,nveyS" No, he could not as have before
shown the de sandant entered and holds under n deed
from f. Butte worth and wfehence the plaintiff is
not in position TO sc. Let further if there
any equities in favor of ie plaintiff The settlement by
the testimony of plaintiffs wnesses,was made upon the
basis Of the following statement VIZ so much PAID on
n n r1et dina
Sl3 due for Croton water, and checS iof the balance
making in all, the amount agreed l'h, besides as
Stunning payment Of the Hasey mortgage. ms OF ~
SELF renders rapable the error of the pla'pfin in
supIosiDg he has claim against the defendant Upon
the facts disclosed in evidence, 1t is apparent mat
the interest from the date of the mortgage to the deli
very Of the deed allowed to The defendant this
only be construed to have been because he was pay IL
to the mortgage This allowance funs hes argument
for the plaintiff for the apparent that the de-
PENDANT received the conveyance OF the property subject
to the morigage-to his property he must see that
to pay ii twice, which tho plaintiffs claim would render
him liable to do, and further giving the full eject to all
the plaintiffs claims which not countcrvaed by facts
which in plain terms contradict them, and still looking
mainly TO the cguiiiegthe law having been disposed Of
above III cannot bat observe that the Coed called for
above referred toy and the agreement produced by the
plaintiff show the consideration money TO have been all
reid while the plaintiffs construction would compel the
defendant to pay Sl06 81 above that sum. And what
the plaintiffs private individual understanding Of
tie Transaction may been, far adjudication IL
concerned lie must be held esoppcd by the instrument;
iricr seal by himself produced U Hawks J.. r. r.
G. In no asI ect the plaintiff upon the evil
dence presented Therefore, ordered ulgm for defend
nut, with costs.