26 A.D. 219 | N.Y. App. Div. | 1898
This action is upon a promissory note for $7,500, made by the defendants Hagemeyer in their firm name of George Hagemeyer & Sons, payable to the - order of William IT. Chew and indorsed by him and Charles C. Cokefair. The defendants Hagemeyer and Ghew answered the complaint; the defendant Cokefair made default. Pending suit, Hagemeyer & Sons made an assignment for the-benefit of creditors to one Hutchinson, who, by permission of this court, intervened and interposed an answer. The amended complaint contains the ordinary allegations proper to an action of this character against the makers and indorsers of a negotiable instrument, and also sets up the introduction in the suit of the assignee Hutchinson. The answers of Hagemeyer &' Sons and of their assignee are substantially the same. The making and, indorsement of the promissory note are admitted, but it is alleged as a separate defense that the note sued upon was one of a series made by the defendants Hagemeyer & Sons to the order of Chew, delivered without other ■consideration than for the purpo.se of having the same discounted under-an agreement with Chew, whereby the proceeds of the discounts were to be used in paying off and retiring certain other promissory notes which had theretofore been made by the firm of Ghew & Eadie, composed of the defendant Chew and one Eadie, and which notes had belonged to and had been indorsed by the firm
Hpon the issues framed by these answers the case came on for trial, and for some reason not disclosed, the plaintiff, instead of resting upon the presumption of' bonafides resulting from his possession of the promissory note, undertook to show by witnesses the circumstances under which Blair, the plaintiff, took the note, and also-the circumstances under which it was issued originally, and also-statements and admissions of the makers of the note, made before the plaintiff took it. The witness Roseman testified that he was the-
The evidence of Chexv was directed principally to the consideration upon which the note was originally issued. He testified at one time positively that the note was issued in- part payment for land situated in H'orth Carolina and sold by him to Hagemeyer, and said that it was not issued to take up one of the notes of Chew and Eadie, and, in another part of his examination, he testified that the .note in suit was given substantially as claimed by the Hagemeyers. These were contradictions to be looked at very seriously, for the first version Chew gave of the consideration for which the' note was •originally issued accords exactly with what the witness Roseman testified that George Hagemeyer told him before he purchased the iiote for Blair. The testimony of Cokefair is substantially to the same effect concerning the purchase of the note by the plaintiff, as that of the witness Roseman.
When the proofs were all in, counsel for each- of the parties recpiested the court to direct a verdict, which requests were taken under advisement and subsequently denied, and the court directed that the ■.case go to the jury. But, while counsel for one of the parties was
It will thus he seen that the learned judge disposed of the case hy determining himself that the note sued on was, as matter- of fact, diverted paper, and that the plaintiff had failed to show that he was a. holder for value of that paper. In taking that action he was manifestly wrong. The issue of fact as to the purpose for which the note was originally issued was peculiarly a matter for the consideration of the jury. There was testimony of admissions by one of the makers of the note, and of at least one declaration of the witness Chew, the indorser of the note (although the latter subsequently qualified it), that it was issued originally in payment for land which Chew had sold to Hagemeyer, and on that evidence the plaintiff was entitled to go to the jury, either as to the fact of the consideration of the note at its inception, or as raising an estoppel against Hagemeyer from disputing that consideration; the evidence of Roseman being that, before the note was purchased from Cokefair, those inquiries were made of the maker of the note upon the faith of the answers to which the note was bought; and as against Chew, the only defense interposed by his answer being that the note had no legal inception until it was-delivered to tlie plaintiff, who discounted it at a usurious rate. The question of fact relating to the original inception of the note was the vital one; for if it had a business inception at the time it was made, then it is entirely immaterial, so far as Chew is concerned, what the plaintiff gave for it subsequently. As regards Chew, it was for the jury to pass upon his credibility and to say -whether they would believe his first or his last statement respecting the consideration for the note and when it had its inception.
The learned judge was also incorrect in taking the case away from
It is urged by the respondents that the case stands as one in which both parties submitted to the court, by their requests for the direction of a verdict, those questions which otherwise it would have been for the jury to determine; but no such question arises on this record. The court expressly declined to direct a verdict and thereby left it to the jury. The court liad decided that the case was one for the jury, and after that decision the plaintiff’s counsel withdrew his motion for a direction in his favor, and the court did not act upon requests for a verdict, but dismissed the complaint for failure of
The judgment appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.
Van Brunt, P. J., Barrett, Romsey and O’Brien, J.T., concurred.
Judgment reversed, new trial, ordered, costs to appellant to abide event.