Armbrust v. South

BARNARD, P. J.

This is an action to recover for goods sold by the plaintiff to the defendants upon an open book account. The defendants had been copartners, and on May 1, 1930, the partnership was indebted to the plaintiff in the sum of approximately $4,000. On that day the defendant Franzen executed and delivered to the plaintiff two promissory notes totaling the sum of $2,500. On June 7, 1930, the defendant South paid to the plaintiff the sum of $950. The two notes not having been paid and no other payments having been made, this action followed. The defendant Franzen defaulted and the defendant South defended the action on the ground that the notes referred to had been given and accepted upon the agreement of the parties that they should be taken as the personal obligation of Franzen, and that the partnership would be to that extent released. The trial resulted in a judgment in favor of the plaintiff against both defendants, from which judgment the defendant South has appealed.

Appellant’s principal contention, and the only one that need be considered, is that a finding to the effect that the notes were not accepted by the respondent as a payment of that proportion of the indebtedness and that the respondent did not agree' to look to Franzen alone for payment of that amount, is not sustained by the evidence.

While the appellant relies upon certain portions of the evidence and on inferences that might be drawn therefrom,, the record contains other evidence which supports the finding complained of. It is conceded that any agreement in reference to the taking of these notes was' consummated between the respondent and Franzen at a time when no one else was present. In reference to what was done at that time the respondent testified that Franzen came to him on that day and said they were about to settle the affairs of

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the partnership and discontinue business, and it would be a great convenience to him if the respondent would accept his notes for the amount owed by the partnership; that he told Franzen it was impossible for him to do this for the reason that he had notes due at the bank and must get some money with which to pay them; that they finally came to an agreement that he would accept $2,500 in notes from Franzen with the stipulation that the balance should be paid in cash immediately; and that this was agreed to by Franzen. In other portions of his testimony, in reference to the time within which the balance of the account should be paid in cash, he testified that it was to be paid “within a reasonable length of time, the next week or so”; that he told Franzen he would take his notes if the balance was paid in cash “within a week”; and that he told him something like “within a week”.