The opinion of the court was delivered by: BONSAL
In September 1966 plaintiff instituted this action in Supreme Court, New York County, seeking to recover on two promissory notes, one for $125,000 and the second for $10,000, made by the defendant Anglo-American Properties, Inc. (American), and also signed by the defendants John Sackville-Pickard (John Pickard), Peter Sackville-Pickard (Peter Pickard), W. L. Holcomb and Mrs. Fannie S. Holcomb (the Holcombs). Only John Pickard and Peter Pickard (the Pickards) were served, and on October 11, 1966 they removed the action to this court on the ground of diversity of citizenship, plaintiff being a citizen of New York and the Pickards being citizens of Pennsylvania. Plaintiff now moves for summary judgment pursuant to Rule 56, F.R.Civ.P. Plaintiff's motion is granted with respect to the amount of principal presently due on the $125,000 note, such amount to be determined at trial. Plaintiff's motion with respect to interest on the $125,000 note and with respect to the $10,000 note is denied.
In March and April 1964 plaintiff loaned $125,000 to W. L. Holcomb & Associates, Inc. (the Holcomb Co.), a corporation organized under the laws of Mississippi and principally owned and controlled by the Holcombs, and plaintiff received a note in the amount of $125,000 payable to him (the Holcomb note). The Holcomb note, date April 1, 1964, was made by the Holcomb Co. and was guaranteed by the Holcombs individually. Thereafter, the Holcomb Co. went into receivership in Mississippi.
On October 12, 1965, American, a corporation organized under the laws of Pennsylvania and principally owned and controlled by the Pickards, entered into an agreement with W. L. Holcomb to purchase stock of the Holcomb Co. and to assume certain of its liabilities, including the Holcomb note. Paragraph 1(d) of the agreement provided as follows:
"(ii) BUYER [American] will assume the responsibility and payment of the following notes, in the following manner:
"(iv) The Note of David Wiltsek of the City of New York, State of New York, in the amount of One Hundred and Twenty Five Thousand Dollars ($125,000) will remain guaranteed by SELLER [W. L. Holcomb] until such Note is redeemed by BUYER under the terms and conditions arranged between BUYER and David Wiltsek which will include the payment of all delinquent interest, copy of which agreement is attached hereto as Exhibit 'B'."
No agreement was attached as Exhibit B but a letter from plaintiff to American dated August 31, 1965 was attached, which specified that American was to execute a note for $125,000, payable in installments, with interest at 6% per annum and, at the time the note was executed, American was to pay all unpaid interest due on the Holcomb note. American's assumption of responsibility for the Holcomb note was not to relieve the obligors thereon of their liability.
On February 28, 1966, Owen T. Palmer, an attorney with offices in Mississippi who was representing the Pickards, sent to the plaintiff the two notes made by American (the notes) upon which he now seeks to recover. The notes, which are dated January 15, 1966 and which are identical except as to amount, read in relevant part and are signed as follows:
"FOR VALUE RECEIVED, I, we, or any of us, agree to pay to the order of D. B. Wiltsek the sum of * * * [ONE HUNDRED TWENTY-FIVE THOUSAND DOLLARS in the $125,000 note and TEN THOUSAND DOLLARS in the $10,000 note], with interest at the rate of six per cent (6%) per annum on the unpaid balance * * *.
"All parties hereto, whether maker, endorsers, or sureties, hereby waive presentment, demand for payment, protest ...