175 N.Y. 264 | NY | 1903
In August, 1895, Elizabeth J. Preston made her promissory note for $330 payable to W. Asten Preston *266
three months after date. The note was at the date thereof indorsed by the payee to Roselle Balch, and on the same day Elizabeth and W. Asten Preston executed to said Roselle Balch a mortgage of $330 to secure the payment of said note. The note and mortgage were given in pursuance of a usurious agreement between the Prestons and Balch. In June, 1896, Balch assigned the note and mortgage to the defendant, and in January, 1899, the defendant assigned them to the plaintiff. At the time of this last transfer payments had reduced the amount of the note and mortgage to $183.72, which was the amount paid by the plaintiff for them. The assignment from the defendant to the plaintiff contained this covenant: "And the said party of the first part hereby covenants that there is due on said bond and mortgage the sum of $183.72 with interest included therein to date, January 20, 1899." Subsequently the plaintiff brought suit on the bond and mortgage, and was defeated in the action by reason of the usurious agreement in which the securities had their inception. Thereupon he brought this action against the defendant, his assignor, to recover the amount paid for the note. No proof was given to show that the defendant was aware of the usury which tainted the note. The trial court found the facts as stated and rendered judgment for the defendant, being of opinion that the decision of this court in Littauer v. Goldman (
It is unnecessary to review the doctrine declared in the case of Littauer v. Goldman (supra), nor to consider the question whether that doctrine has not now been incorporated into our statute law by the enactment of the Negotiable Instruments Law, as we think that the plaintiff was entitled to recover under the express warranty contained in the assignment, that there was "due on said bond (note) and mortgage the sum of $183.72 with interest thereon." The term "due" is defined *267
by Bouvier (1 Law Dict. 621) to be "what ought to be paid; what may be demanded;" by Burrill (1 Law Dict. 404) as "that which one owes; that which one ought to pay, or do to, or for another." The definition given in Webster's Dictionary is: "Owed; that ought to be paid or done to another. That is due from me to another; which contract justice or propriety requires me to pay and which he may justly claim as his right. That which law or justice requires to be paid or done." The term is used in different senses, sometimes as meaning payable, sometimes as meaning only owing and not yet payable. (Allen v. Patterson,
The judgment should be reversed and a new trial granted, costs to abide the event.
PARKER, Ch. J., GRAY, O'BRIEN, HAIGHT, MARTIN and WERNER, JJ., concur.
Judgment reversed, etc. *268