Benjamin Moore & Co. v. O'Grady

PLUMMER, J.

The plaintiff began this action against the defendant to recover upon two assigned claims or causes

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of action, the first cause of action being based upon a promissory note dated January 9, 1931, payable on September 1, 1931, in the sum of $282.32, bearing interest at the rate of 6 per cent per annum, executed by the defendant and delivered to Figatner-Scott Company, the assignor of the plaintiff.

The second cause of action was based upon a book account in the sum of $32.39 for goods, wares and merchandise alleged to have been purchased by the defendant from the Luyties Pharmacal Company, and assigned to the plaintiff.

The answer of the defendant admitting the execution of the note, set up as a defense thereto a lack of consideration for any sum in excess of $84, and also the further defense that at the time of the execution of the note there were negotiations between the assignor of the plaintiff and the defendant, that the amount due, for which the note was given, would be adjusted in accordance with the actual indebtedness found to exist on the part of the defendant to the plaintiff’s assignor, Figatner-Scott Company. The record shows that the defendant had been buying certain supplies from the assignor of the plaintiff to be used on certain buildings which the defendant was having constructed, repaired or painted.

After the execution of the promissory note it was further alleged the defendant examined his accounts and found that his indebtedness to the Figatner-Scott Company was only the sum of $84, which sum the defendant offered to pay the Figatner-Scott Company; that the Figatner-Scott Company refused to comply with its agreement to have the note adjusted to evidence the amount which was actually due from the defendant to the Figatner-Scott Company, and that the consideration for which the note had been given had failed in excess of the sum of $84. We have not followed the formal language of the pleadings, but the foregoing are the facts set forth therein.

The court awarded the plaintiff judgment for $84 principal on account of the note which we have mentioned, and $15 attorneys’ fees; also awarded judgment in the second cause of action in the sum of $17.10. From this judgment the plaintiff appeals.