Meyer v. Kohn

By the Court, Shafter, J. The original complaint in this action was framed upon an alleged indebtedness for five thousand one hundred and forty-one dollars and ninety-eight cents for goods sold and delivered. The complaint was filed on the 6th day of June, 1864. On the 12th of that month an amended complaint was filed charging that the defendants, as partners, promised in writing, on the 30th of March, 1864, that they would pay the plaintiffs in gold coin for any goods which they, the defendants, should buy of them, ensuing said date; and that the defendants did, between the said date and the 1st of June, 1864, purchase of plaintiffs goods to the amount of four thousand and forty-seven dollars. A credit of twenty-one dollars is admitted. The [280]complaint contains another count for one thousand one hundred and twenty-seven dollars and seventy-five cents. The plaintiffs recovered a general judgment for five thousand four hundred and"one dollars.

The question is whether the plaintiffs are entitled to a judgment payable in coin for the amount (four thousand and forty-seven dollars) claimed in the special count.

It appears that the goods were bought subsequent to the 30th of March, 1864, and under a verbal understanding that they should be paid for in gold coin. The contract was reduced to writing on the 7th of June, the day after the commencement of the action ; Dauterman signed the paper in the name of the firm, and thereupon delivered it to the plaintiffs. The document was dated March 30th, 1864.

The case stands as it would if the defendants had each signed his own name to the contract; or as it would if Dauterman had signed the name of the firm in the presence and with the express sanction of his partner. The paper was voluntarily giv'en, and it may be added, in pursuance of a moral obligation which the defendants were bound in conscience to fulfil. The complaint states a case within the Act of April 27th, 1863, and the defendants, whose interest it was to defeat a recovery, pending the litigation, furnished the evidence which the Act prescribes, and apparently for the very purpose of enabling the plaintiffs to prove up their case. Having executed the paper under these circumstances, the defendants are not now at liberty to go behind it. To allow them to do so, would be contrary to the maxim that “ that to which a person assents is not esteemed in law an injury,” and to the maxim that “ he is not to be heard who alleges things contradictory to each other.”