Hirsch Britenstool, Appellant, v. Henry Michaels, Respondent

Hirsch Britenstool, Appellant, v. Henry Michaels, Respondent. (Argued February 4, 1874; decided February 17, 1874.) This action was brought to recover one-half of a sum received by defendant of one Brickner. Plaintiff’s evidence tended to establish the following facts: In 1866, one Oppenheimer, failed. The parties and Brickner were among his creditors. At a meeting of the creditors in Rochester, Brickner and the defendant were delegated to represent the Rochester creditors at a general meeting of the creditors, to be held at Cleveland, to secure and arrange Oppenheimer’s indebtedness. On their way to Cleveland it was agreed between Brickner and Michaels, that if either was appointed chairman of the general meeting of the creditors he would appoint the other upon the committee to arrange with Oppenheimer, if one should be selected; and it was further agreed that they should share in any advantage which the one so appointed might derive from his position on such committee. The defendant was chairman of the general meeting of creditors, and Brickner was appointed on the committee. The creditors accepted a compromise of fifty cents on the dollar, and Brickner secured the notes of Oppenheimer for the other fifty per cent of the indebtedness to his firm. Brickner did not keep faith with the defendant, and, after some time, the latter discovered that Brickner had obtained an advantage in the settlement with Oppenheimer over the other creditors; he thereupon stated to the plaintiff that Brickner had not acted rightly in the compromise, but had collected more than the other creditors, and that he thought if plaintiff would go in with him they could collect all that was due them, and he proposed to plaintiff that he should unite with him (the defendant) in proceedings to be taken against Brickner. It was agreed between them that they would jointly defray whatever expense was incurred, and divide whatever was received. Mr. Brickner learned that a suit was about to be commenced against him, and, in consequence thereof and of the claim made upon him by defendant, proposed to, and finally did settle the matter with defendant, by the payment of the sum of $191. The settlement between defendant and Brickner was not made until the proposition had been communicated to the plaintiff1 and approved of by him, defendant promising to pay him half. After the payment of the money by Brickner to the defendant, the- plaintiff demanded his proportion of the moneys received and the defendant refused to pay it. There was no evidence that plaintiff knew of the arrangement between defendant and Brickner at the time of his agreement with the former. After the testimony was closed the counsel for the defendant asked the court to direct a verdict for the defendant, upon the ground of want of consideration for the promise, which motion was granted. Held, error; that the promise to contribute to the expenses was a good consideration for the promise to share the proceeds, and that the condition, if any, that a suit should be brought, was waived, and by mutual agreement a settlement substituted. W. F. Cogswell for the appellant. John Norton Pomeroy for the respondent. [MAJORITY — Rapallo, J.,] Rapallo, J., reads for reversal and new trial. All concur. Judgment reversed.