Green v. Newmark

[34]

ARCHBALD, J.,

pro

tem.

On December 28, 1920, plaintiff loaned Ms close friend, defendant M. N. Newmark, the sum of $2,500. In addition, and in order to stay execution on a judgment rendered against said defendant, plaintiff became surety on a stay bond. Such judgment was 'appealed by Newmark and was affirmed. Demand was made on plaintiff by the judgment creditor to pay said judgment, with interest and costs, in accordance with the terms of the bond executed by him. At the time, Newmark was unable to pay said judgment, but he and his wife, the defendant Jessie P. Newmark, were beneficiaries under a trust of which the Title Insurance & Trust Company was trustee, a part of the

corpus

of said trust being 87% shares of the capital stock of the Standard Woodenware Company and a promissory note for $1500 secured by a mortgage of real estate. It was agreed in writing dated May 1, 1922, between plaintiff and defendants, that plaintiff would accept from said trustees said shares of stock and promissory note in satisfaction of defendant M. N. Newmark’s liability by reason of the payment of said judgment by plaintiff and in satisfaction of the loan of $2,500 theretofore made. It was further agreed that if plaintiff “shall pay said judgment and satisfy the same of record, and should receive from the said trustee the aforesaid personal property in settlement therefor, that they and each of them will save the said Calvin Green harmless from all loss by reason of the accepting of said personal property in satisfaction of the aforesaid claim and judgment; and in the event the said Calvin Green is unable to sell the said personal property on or before two years from the date hereof, for a sufficient sum to repay to him the amount of his said claim of $2,500 and the amount expended in satisfaction of said judgment, together with interest thereon at the rate of seven per cent per annum, and any reasonable attorney’s fees paid out and expended, and all other reasonable costs and disbursements expended by the said Calvin Green in and about the settlement of the aforesaid matter, and the sale and disposition of the said personal property received by him from said trustee as aforesaid, and all other reasonable expenses, that they will, upon demand, pay to the said Calvin Green