151 N.Y.S. 191 | N.Y. App. Div. | 1915
Prior to August 24, 1909, one W. Platt Fisher presented to the plaintiff bank two promissory notes, purporting to be indorsed by Herbert ,W. Lasher and Nelson P. Lasher, who are the defendants in this action. One of these notes was for $100 and interest, dated May 25, 1909, payable in four months. The other note was dated August 9, 1909, payable in four months, with interest, and for the sum of $150. The plaintiff discounted the said notes, paying the proceeds thereof to W. Platt Fisher.
•Upon the 24th of August, 1909, the plaintiff’s cashier, P. Gardner Coffin, became suspicious of the genuineness of the signature of Nelson P. Lasher upon these notes. Nelson P. Lasher was the father of Herbert W. Lasher and the father-in-law of W. Platt Fisher. Upon that day Coffin went to Nelson P. Lasher and Herbert W. Lasher, and learned that their signatures upon the said notes were forgeries. Coffin thereupon told them that he would be out to see them that evening “ in shape to do business.” Thereafter and upon the same day he swore to an information for the arrest' of W. Platt Fisher. A warrant was procured and placed in the hands of a constable. That night he went to the residence of the defendants, taking the constable with him, who, however, left the conveyance just before they arrived at the defendants’ residence. The defendants, however, knew that he was there. Coffin thereupon wrote upon the back of the notes the following memorandum: “We severally and jointly guarantee the
At the close of the evidence both parties moved for a directed verdict. This submitted to the court the questions both of law and of fact, and thereafter an order was entered dismissing plain - tiff’s complaint. No decision, however, except the said order was ever made by the judge and no findings of fact and law were ever signed by him. By strict practice this case should be sent back to the Special Term judge for findings of fact and law, upon which this judgment can stand. But with the power given to us under section 1317 of the Code of Civil Procedure, inasmuch as the conclusions to be drawn from the evidence afe clear, and a jury has in fact been waived, this court may find the necessary facts either to sustain or to reverse the judgment entered.
The learned trial court dismissed the complaint upon the ground that there was no consideration for the defendants’ promise. This, we think, was error. If these signatures were in fact forged, as is assumed throughout the case, the bank at the time of the discovery had at once the right to disregard the notes and to sue W. Platt Fisher for moneys had and received. After taking from these sureties their guaranty of the genuineness of the indorsement and their guaranty of the payment of the notes when due, this right was suspended, and the bank had no authority to demand payment thereof from the principal until the due date of the notes. This extension of time was in law a sufficient consideration for the defendants’ promise.
It seems to me clear, however, upon the facts of the case
The burden of the plaintiff’s contention rests upon the claim that the defendants are estopped from denying the validity of their indorsements upon these original notes, and the action is brought upon those original notes. Plaintiff rests largely upon the case of Rothschild v. Title Guarantee & Trust Co. (204 N. Y. 458). I am unable to find, however, in this transaction any elements of an equitable estoppel. There was no representation that these indorsements were originally genuine, and if there were there was no reliance upon any such representation by Coffin, who knew the fact that they were not genuine. The plaintiff has been in no way misled to its prejudice, and failure to prosecute and demand payment is based solely in its reliance upon this new guaranty contract, which is invalid because tainted with crime. In the case cited, upon which reliance is placed, the plaintiff who sought to have canceled a mortgage, made payments upon a mortgage upon which her
All concurred, except Kellogg, J., dissenting.
Order and judgment affirmed, with costs.