22 N.Y.S. 553 | New York Court of Common Pleas | 1893
Action by indorsee against maker of a note. Defenses. First, that the note is .a forgery; and, secondly, that, being ineffectual in the hands of the payee against the maker, it is not enforceable by the plaintiff, who received it in payment of an antecedent debt.
The issue as to the execution of the paper by the defendant was submitted to the jury upon conflicting evidence ample to authorize a finding either way, and we have no jurisdiction to review their determination. The verdict is conclusive of the authenticity of the note.
The other issue, as to the availability of the note in the hands of the plaintiff, though tendered by the answer and contested on the trial, appears not to have been referred to the jury for decision, at least not so distinctly and directly as to admonish them that the solution of it was indispensable to a verdict. The court charged in terms that “the defense is simply upon the point that the note was never signed by the defendant. This is substantially the only dispute in the case for your consideration.” Manifestly, upon this instruction, the jury may well have concluded that, when they found the issue as to the genuineness of the note in favor of the plaintiff, she was entitled to the verdict, although, in their opinion, the evidence demonstrated the other defense. True, no exception to this instruction was taken by the defendant, but, in effect, she presented her other defense for determination by the jury by requests for a
“I told her that I got this §500 note for work I did, and that I owed her the money; and that she should go down the following day to the maker, and present the note, as it was due. I also said, ‘Don’t deliver it without payment.’ Nothing else was said in regard to the note. I told her the note was good for what I owed. her. I took no receipt from her at the time, and have not taken a receipt from her since.”
As to the receipt of the note, the plaintiff says:
“It was given to me for a loan of money I made him. * * * He said that he gave it to me for the money I owed him.”
The language of the learned trial judge in his charge to the jury is conclusive that he did not understand the plaintiff to have accepted the note in discharge of her claim, for he cautioned the jury against the testimony of the transferrer on the ground that “he has an interest in obtaining the verdict,” which could not be unless he were still liable to the plaintiff for the loan in the event of her failure to recover on the note.
It occurred to us on the argument that the defendant’s request to charge was not phrased with critical accuracy in submitting the proposition that an antecedent debt is insufficient to constitute a “bona