19 Johns. 326 | N.Y. Sup. Ct. | 1822
delivered the opinion of the Court. The act incorporating the Bank of Chenango, enacts, “ that all the parties, whether makers, obligors, drawers, endorsers, or guarantees, of any note, bond, or bill, discounted at said bank, or pledged for money due to the same, are declared to be joint makers, obligors, or drawers, and as such shall and may be sued, declared against, and prosecuted to judgment and execution, jointly; provided, that nothing in the act contained shall alter, or in any way affect the legal liabilities of the parties, or any of them.’’
The defendants are the makers and endorsrs of a promissory note, against whom the plaintiffs have declared jointly, alleging that they made a certain note in writing, their own proper hands and names being thereto subscribed, by which they promised to pay the plaintiffs, ninety days after date, 5,000 dollars, which note the plaintiffs aver was discounted at the Bank of Chenango. The note was made by two of the defendants, and endorsed by the others; at the trial, the plaintiffs proved the handwriting of the makers and endorsers, and a regular demand of payment and notice. The (defendants’ counsel objected to the reading of the note in Í¡vidence, but it was admitted. It is now contended, that he note was not discounted at the bank, and, therefore, annot be given in evidence to support the counts in the ffaintiffs’'declaration. Whether this objection was urged at he trial or not, is immaterial; the objection was general, md may be made here.
In order to determine whether it is well founded, we must ecur to the original proposition made bythe defendants, vhich was the basis of the loan. .They propose to deposit !,0QQ dollars, and take from the bank 5,000 dollars, the
The fact stated is. true; but the consequence does not follow. In determining the liability of the defendants, we must look beyond the note. The proposition made by the defendants having been assented to, by the plaintiffs, became the contract between the parties, on which must depend the question of liability. By that it was agreed, that so long as the defendants kept the 5,000 dollars in circulation, they were to pay no interest; they were at no time to suffer a greater amount to arrive at the bank, than the amount of their deposit, and were to pay interest on all the money marked, from the time it arrived, until returned; and so long as the exchanges were kept good, so long they were to have the money ; either party reserving the privilege oí closing the concern, by giving six months notice ; and provided the defendant did not keep the exchange good, the agreement was forfeited, and the plaintiffs were at liberty
The same reasoning applies to the objection, that the endorsers are discharged, because the time was extended beyond that specified in the note. The endorsers are not in a situation td urge this, for the note and contract -must be taken together; and then we find the endorsers, as well as the makers, agreeing to the extension. Independent of the contract, had the makers entered into a stipulation With the holders to extend the time, there is no doubt the endorsers would have been discharged. The authorities cited abundantly prove this; but I have not discovered any authority that applies the principle to a case like the present. If the endorsers had paid the amount of the note, when it fell due, they could not recover of the makers, because they would have acted without request, and contrary to the stipulation and understanding of all parties.
The declaration states, that the defendants made the note; their own proper hands and names being- thereto subscribed ; it is" admitted, that all did not subscribe the note, for two endorsed it, and'that the note produced, varies from the description given in the count; but the true question is, whether, notwithstanding the variance, the note may not he given in evidence under it. I think the statute has settled this question,, for all the parties, whether makers or endorsers, are declared to be joint makers, and as such may he declared against, arid prosecuted to judgment. This
j folly concur with the counsel for the defendants, that this note could not be given -in evidence under the money counts. The statute in this case has given a new remedy, not a new action ; the evidence which supports the statute remedy does not apply to the common law counts. Although a note may be good evidence on the count for money lent against the makers, it is no evidence when the endorsers are joined. The* note does not prove a joint cause of action against them for money lent; no such action, jointly, is known to the common law, and, therefore, the plaintiffs must rely solely on the count on the note, which I think is supported by the evidence.
But it is contended that the note is usurious. In ex- • a mining this question, we must view the whole transaction .as it passed between the parties, in order to determine -whether there were any subtle devices or evasions to elude the -statute. After an attentive consideration, it appears to me, that such was not the intent; but that this was a contract prudently entered into by the bank, to guard against the immediate return of their notes, which from their limited circulation was to be apprehended, and to prevent the -necessity of stopping payment.
The.defendants were to deposit 2,000 dollars, and take 5,000 dollars in notes of the bank, which were marked. •So .long-.as they kept the whole in circulation, that is, prevented it from returning to the bank, 'they were not to pay interest. This may have been difficult; but it cannot be said to be impracticable ; and if so, the effect would be that the' bank would have the benefit of the deposit of 2,000 dollars, but would receive no interest on 3,000 dollars of the -money loaned: Instead thereof, their operations might be ■facilitated in not being compelled to redeem the money. Again; the defendants are to pay interest on all the money ¡marked., from the time it arrives, until redeemed. The .amount that might return within a given time, was altogether contingent. The defendants had the privilege, .as well
In Floyd v. Edwards, (Cowp. 115.) Lord Mansfield lays down the law in this manner: that whenever it^is in the power of a known borrower of money, to pay the princi
Judgment for the plaintiffs.