
    Gauld v. Lipman.
    (New Tork Common Pleas
    General Term,
    June, 1893.)
    Defendants entered into a building loan agreement with one H., whereby they were to advance to him a certain amount of money in installments. H., being indebted to plaintiff, gave him two orders on defendants, each for §500, which they accepted and agreed to pay as payments to H. became due. Defendants refused to pay the amount of the two orders unless plaintiff would release a bond and mortgage held by him against H. In an action to recover the amount of said orders, both parties requested the court to direct a verdict, and plaintiff’s request was granted. Held, error; defendants’ refusal to pay did not authorize an inference that the installments to become due from H. under the loan agreement had matured, and in the absence of evidence that such was the case there was nothing to show that defendants had received any moneys to which plaintiff was entitled, and hence there was a failure of proof.
    Appeal from a judgment of the General Term of the City Court of New York which affirmed a judgment at trial term entered upon a verdict by the court.
    Action to recover in implied assumpsit for moneys alleged •to have been had and received by defendants to plaintiff’s use.
    
      Jacob Fromme, for plaintiff (respondent).
    
      George W. McAdam, for defendants (appellants).
   Bisohoff, J.

The complaint was upon defendants’ implied promise to pay $1,000, alleged to have been had and received by them to plaintiff’s use ; and the answer denied the receipt ■of the money. On the trial it appeared affirmatively from the testimony of both defendants that neither of them had in fact received any money whatever for the plaintiff, and this was left unchallenged unless the remaining facts in evidence justify an inference of its receipt. Defendants had entered into a building loan agreement with one George J. Hamilton, pursuant to which the former were to advance the latter- a ■specified sum of money in installments. Hamilton was indebted to plaintiff in $1,000, and issued to him two several orders on defendants, each for $500, which the latter accepted, one “ payable when the eleventh (11th) payment became due • and payable according to terms of Builders’ Loan Contract on premises N. E. corner 90th str. & 10th Ave.,” and the other payable when last payment becomes due and payable ” according to the terms of the said contract. Some time after the acceptance of these orders by defendants they were asked to pay the several amounts thereof, which they refused to do unless plaintiff would consent to release a certain bond and ■.mortgage for $1,300 held by him against Hamilton, and which defendants claimed at the time operated, in a manner left to our conjecture, to prevent Hamilton from proceeding with work as a builder. Both parties having asked the court to direct a verdict, such a direction was made in plaintiff’s favor.

We are of the opinion that defendants’ motion should have been granted or the complaint dismissed. Defendants’ refusal to pay unless plaintiff would release Hamilton’s bond and mortgage did not authorize an inference that the installments, to become due from defendants under their building loan agreement had matured, and in the absence of evidence that such was the case there was nothing to indicate that defendants had at any time received from any source whatever any moneys to which the plaintiff was entitled. Hence, there was a failure of proof respecting the cause of action alleged in the complaint. Beardsley v. Soot, 11 Johns. 464; Anthon’s N. P. 111.

Furthermore, an implied promise in assumpsit does not arise when the party against,whom tfye recovery is sought has incurred liability to the party seeking recovery for the same moneys upon an express contract of which no breach or rescission has been shown. Raymond v. Bearnard, 12 Johns. 274; Jewell v. Schroeppel, 4 Cow. 564; Chesapeake & Ohio Canal Co. v. Knapp, 9 Peters, 222 ; Bank of Columbia v. Patterson, 7 Cranch, 299; Washington, etc., Packet Co. v. Sickles, 10 How. 419; Dermott v. Jones, 23 id. 220 ; Ingle v. Jones, 9 Wall. 486. In such a case the party seeking recovery must abide by his contract. In the present instance defendants are liable to plaintiff upon their acceptances to pay when the installments under the building loan agreement have respectively matured. Until the maturity of the installment is shown the contract of acceptance must be regarded as subsisting and open.

Plaintiff could not, in this action, recover upon the acceptances because of the rule which requires the recovery to be secundum allegata et probata. Romeyn v. Sickles, 1 Silvernail’s Ct. of App. 594; 108 N. Y. 650.

The judgment of the General and trial terms of the court below must be reversed, new trial granted, with costs to the appellants to abide the event.

Daly, Oh. J., and Pbyoe, J., concur.

Judgment reversed, new trial granted, costs to abide event.  