Opinion
Submitted October 27, 1933 —
Decided January 5, 1934.
An appellate court will not pass upon the question whether there was a failure of consideration in a suit brought upon a check given by defendant below, when the defense raised a question of fact which was determined adversely to him by the trial judge, sitting without a jury.
On appeal from the Supreme Court, whose per curiam is printed in 11 N.J. Mis. R. 359.
For the appellant, George R. Rosenstein.
For the respondent, Brenner Kresch.
We agree with so much of the opinion of the Supreme Court as holds that there was sufficient consideration moving for the giving of the check upon which suit was brought in the obligation which the plaintiff entered into to sell his business. Whether a breach of the same agreement on the part of the plaintiff would or would not be open to the defendant as a defense to the suit on the check may be open to serious question. It would seem that if the agreement is the basis and consideration for the giving of the check, the non-performance of that agreement might well be construed a failure of consideration and consequently release the defendant from the obligation on the check, and on so much of the opinion of the Supreme Court as holds to the contrary it is not necessary to pass our opinion, and for this reason none is expressed. Inasmuch, however, as the defense raised a question of fact for the trial judge, was determined by him adversely to the defendant, it is not reviewable on appeal.
The facts of the case were that the contract of sale was executed and delivered on the same date that the check was given. Two days later the vendees named in the agreement rescinded it and repudiated all obligations arising thereunder because of alleged misrepresentation and the failure to perform an agreement to obtain an extension of a lease. The alleged misrepresentations were disputed in point of fact, and time for the compliance with the obligation to secure the extended lease was not afforded before the agreement of sale was repudiated.
The judgment is affirmed.
For affirmance — THE CHANCELLOR, PARKER, LLOYD, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 13.
For reversal — None.