50 How. Pr. 162 | N.Y. Sup. Ct. | 1872
— This action is brought to recover the amount of a note and of a due bill, made by H. I. Spotts, ■ deceased. Various defenses were set up in the answer, viz.: A general denial, payment, the statute of limitations, and a partnership between the parties, out of which the note and due bill originated.
The referee found for the plaintiff as to the due bill, and against the plaintiff on the note. Both parties have appealed, the one as to the finding on the due bill, and the other as to the finding on the note.
Both of the securities were in possession of the deceased at the time of his death. The presumption arising from such possession is that they were evidences of indebtedness to Bell, the intestate of the plaintiff.
The due bill, on its face, purports to be for borrowed money; there is no proof as to its origin, or the indebtedness for it or payment of any part.;
The referee finds the making and delivery of the due bill by Spotts to Bell, and that no part of it has ever been paid.
The defense rests entirely on the statements of Bell, when spoken to about putting in his claims against the estate of Spotts; that he had no claim to present, and his refusal during his life to make any claim against the estate. He did, notwithstanding, speak of some claim against Spotts, which he thought he ought to have, but declared he had none to present.'
There is no clear evidence to show any defense that would be conclusive against the admission in the due bill that it was for borrowed money, nor any evidence of payment.
All the evidence regarding this due bill presented a question of fact for the decision of the referee.
There has been nothing urged on the part of the defense that would warrant us in setting aside his decision, so far as relative to the due bill.
This disposes of the appeal on the part of the defendant as to the amount for which the plaintiff has obtained judgment.
The plaintiff appeals from the decision of the referee upon the ground that he improperly rejected the claim to recover upon the note of $15,225.
In regard to this note there' are facts in evidence which , tend to explain its origin.
The referee finds such to have been, an intended purchase of the steamship “ Eclipse,” one-half of which was to be for Spotts; and this note was given to represent the one-half so intended to belong to Spotts. That this note was to reimburse Bell, who had to provide for that half on account of Spotts; that the note in suit was given for one-half of the amount of the purchase-money, with the .interest added up to the time of payment. The purchase was made by Bell, on his own responsibility, with Martin Cobb & .Co. as his sureties.
He also finds that this arrangement fell through in conse
Upon this branch of the case I think there can be no doubt that the referee was right.
The note never effected the purpose for which it was intended; and if Bell and Spotts had at first arranged to buy the steamboat for their joint interest and the purchase made had been so intended, the changes by the agreement of 24th of April, 1858, which was evidently to satisfy Martin Cobb & Co. as to their liabilities as sureties on the purchase, altered the rights and liabilities of all the parties.
By that agreement which, although purporting to be with the assent of Spotts, is only signed by Bell and Martin Cobb & Co., the ownership of the boat is to one-half in Martin Cobb & Co., and one-half in Bell.
The parties then agreed, in consideration of Spotts taking command of the boat, that the owners would, sell him one-fourth of the said boat whenever “ he may deem proper to have the same placed in his name, and could make the requisite- payments.”
As Bell was at this time owner of the hoat, he had the power to make this agreement with his sureties on the purchase, but even if this was doubted, the subsequent act of Spotts in taking the command, and the settlement of Spotts with Martin Cobb & Co., for the one-eighth purchase of them, would be sufficient evidence to show, the assent of Spotts to this agreement.
It is not material to inquire whether Spotts and Bell ever completed the arrangement for transferring the one-eighth from Bell to Spotts.
Whether such purchase was completed or not would be immaterial on o an inquiry into the consideration of the note in suit.
That note was evidently given to buy for Spotts one-half of the steamer with Bell.
That purchase was never completed as agreed on, or if the
Spotts had no interest in the vessel beyond a conditional agreement to sell him one-quarter of it whenever he deemed proper to take it, and could pay for it, and which he was under no obligation ever to perform.
There is no proof that he ever received from Bell such share in Bell’s halij or that any thing ever passed between them, as to such interest, afterward even if it was thereafter completed it could form no consideration for the note in suit. That consideration had entirely failed by act of Bell, and the note remained in Bell’s possession as worthless paper, which could not have vitality imparted to it by any subsequent agreement.
Whether or not Spotts ever became liable to Bell for any part of the steamer, under the agreement, is not in proof.
If he did, the right to recover upon such liability can in no wise be enforced in this action.
These views fully explain the cause of Bell in refusing to enforce a claim on this note against the estate of Spotts. He knew the note had not been used for the purpose for which it was given, and he could make no claim thereon, although he said he was entitled to a portion of it as much as Cobb was.
It must be remembered that the speculation in the boat had failed and been attended with a total loss. Bell may well have thought, in equity, he was entitled to the same that Spotts had allowed to Martin Cobb & Co., and he so asserted. Whether this was so or not the note in suit could in no way be used for its collection.
Both findings appealed from are correct, and the judgment must be affirmed, with costs.
Learned, J., concurring.
