16 A.D. 339 | N.Y. App. Div. | 1897
Lead Opinion
This action was brought to recover the amount of a promissory note made by the defendant Carpenter and indorsed by the defendant Roderick. The case came to trial upon the complaint and. answer
The facts, as they appeared on the trial, were that Carpenter and Roderick had been partners in business prior to the date of the note in suit; that they had made, during their copartnership, a note in their firm name, which was held by the plaintiff and which became due in September, 1892. Before the maturity of that note their copartnership was dissolved, and Mr. Carpenter assumed the indebtedness of the firm. On or about the .twenty-sixth day of September Carpenter offered to the plaintiff his (Carpenter’s) individual note in renewal of the copartnership note, which the plaintiff declined to take unless it were indorsed by the defendant Roderick. Carpenter thereupon procured the note, which was made payable to the plaintiff, to be indorsed by Roderick, and the plaintiff accepted it and surrendered the copartnership note.
The answer of the defendant Roderick admits that he indorsed the note for the accommodation of the defendant Carpenter, but alleges that his indorsement was without other consideration, and that the plaintiff knew that the indorsement was of the character stated. The defendant Roderick also admits in his answer that before maturity the note, with his indorsement on it, was delivered to the plaintiff- for value. The -complaint was dismissed on the ground that there was no evidence to show that Roderick made his indorsement of. the note with the specific intention that it should be used by Carpenter to procure credit with the payee, and that, therefore, there was no proof that Roderick intended to be put in any other position than that of á second indorser of the paper. It is the recognized rule of law in this State that where a person indorses a promissory note.in blank before delivery to the payee, there is a presumption that he intends to become simply a second indorser ; but that presumption may be overcome by. parol proof showing that the indorsement was actually made in 'order that the maker might obtain credit from the payee. (Coulter v. Richmond, 59 N. Y. 478.)
There was sufficient evidence in this case to go to the. jury, establishing that Roderick did indorse this note to enable his former copartner, Carpenter, to get four months’ credit on the obligation of the firm toCuming, which obligation, as between Carpenter
The proof shows that the plaintiff would not take Carpenter’s individual note without the indorsement of Rodei’ick, and that thereupon Carpenter went to Roderick, procured his indorsement, came back, delived the note thus indorsed to the plaintiff, and took up the firm obligation. These circumstances were sufficient to allow the inference that Roderick intended to give his indorsement to enable credit to be obtained from this plaintiff, and prima facie at least to rebut the presumption that Roderick was to be liable only as a second indorser.
The complaint was improperly dismissed in the court below, and the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Rumsey and Ingraham, JJ., concurred; Yan Brunt, P. J., and O’Brien, J., dissented.
Concurrence Opinion
I concur with Mr. Justice Patterson that there should be a new trial. The fourth allegation of the complaint alleges that Carpenter “ had procured the indorsement thereon'(i. e., the note in suit) of the defendant George W. Roderick, who indorsed the said note for tlie purpose of giving credit to the maker with this plaintiff, the payee thereof, and the said note was delivered to the plaintiff so
Before considering the testimony, it is well to notice the form of the denial of this allegation; The allegation was as to the purpose for which the defendant Roderick indorsed the note. It was an allegation of fact particularly within the knowledge of Roderick, and this allegation in the complaint called for an answer by him as to the* intent with which he indorsed the note. I think there is considerable doubt as to whether this allegation is denied at all. Having thus alleged the purpose of the indorsement, Roderick, in answer to that allegation of the complaint, says: “ He denies that the defendant Alexander T. Carpenter procured the indorsement of said note 'mentioned in the amended complaint by this defendant for the purpose of giving credit to the maker with the plaintiff, the payee thereof.” It was not alleged that Carpenter had procured the indorsement for that purpose, and what Carpenter’s purpose was is entirely immaterial. The allegation was that Roderick had indorsed it for that purpose, and that allegation he does not specifically deny. I also think it doubtful whether this allegation of the complaint is denied by the 7th paragraph of the answer, by which the defendant denies any knowledge or information sufficient to form a belief as to any of the allegations contained in said amended complaint not hereinbefore expressly admitted or denied.
If, however, the answer is sufficient to raise an issue as to the intent with which the defendant indorsed this note, I think that there was evidence sufficient to sustain a finding that Roderick indorsed this note for that purpose. The question is as to the pur* pose with which Roderick made the indorsement. To prove that purpose, it is not necessary that there should be evidence of an express agreement. The note as it stands with the indorsement upon it raises a presumption that the indorsement was intended to be subsequent to that of the payee. That presumption, however, is rebutted where it appears that the object of the indorsement was to give credit to the maker of the note with the payee. Where this intention appears ■—and it is plain, I think, that it can be found from the acts of the parties at the time; and the circumstances sur* rounding the indorsement of the note-—then such an indorser becomes the first indorser and is responsible to the payee. The
Dissenting Opinion
I cannot concur in the opinions of the court. It seems to me that the conclusions of the opinions depend upon the assumption of facts which do not appear in the record.
The note on which the action in this case was brought was one upon which the respondent appeared as all indorser subsequent to the indorsement of the plaintiff. The allegation in the complaint, and that which the plaintiff was required to prove in order to succeed in the action, was that the respondent indorsed the note for the purpose of giving credit to the maker with the plaintiff, the payee-thereof, and that the said note was delivered to the plaintiff so indorsed, who parted with value therefor. The evidence in the-case only showed that the defendants Carpenter and Roderick had been copartners ; that, as such copartners, on or about the 5th of May, 1.892, they had given a noté in the course of their business to the plaintiff,, payable probably in four months; and that Carpenter and Roderick had dissolved the firm, Carpenter assuming to pay its obligations. The note of the 5th of May, 1892, which Carpenter and Roderick had given to the .plaintiff, was past due at the time of the giving of the note in suit, but there is not a scintilla of evidence tending to show that the respondent knew that fact. Carpenter brought the note in suit to Roderick and asked him to indorse it, but there is no evidence tending to show that Carpenter in any way informed Roderick of the purpose for which it was to be used. The note of May fifth, if payable in a given number of months after date, as commercial paper is usually made payable, had been due nearly three- weeks at the time of the indorsement of the note in suit-; and as there is no evidence that Roderick had any knowledge that it had not been honored at maturity, it must be assumed that Roderick believed it to be paid, as he had a right to do. Under these circumstances, it
It is asserted in the prevailing opinions that it appeared upon the face of the note that Carpenter made the promise to pay Cuming, who, to the knowledge of Roderick, held the firm note, for Roderick was present when that firm note was given originally to the plaintiff. There is not the slightest evidence that Roderick had any idea that the previous note of the firm had been allowed to become due and to remain unpaid, or that Roderick knew that he was liable ■ upon the previous note or that it was held by Cuming, as assumed in the prevailing opinions.
It is further, assumed that the answer admits that the note sued upon was given in substitution for the previous note. It is difficult to see how such an assumption can be derived from the pleadings, inasmuch as the previous note is nowhere mentioned therein. But, even if this were the fact, it would not alter the position of the parties, because, unless the knowledge existed at the time the indorsement was made that this use was to be made of the note, and that it was for the puipose of obtaining credit with the payee thereof, notice that the indorsement had subsequently been used for the purpose of taking up a note not due, or past due, would not in any way affect the respondent’s legal rights. There was an allegation in the complaint that this note had been delivered to the plaintiff for value. This allegation was admitted; and it could not be denied, even if such knowledge had come to the defendant subsequent to the making of the indorsement.
In the case of Coulter v. Richmond (59 N. Y. 481) the fact was recognized that knowledge of -the purpose for which a note is intended to be used may be inferred from circumstances. The evidence in that case showed that for three years, respectively, prior to the making and delivery of the note sued upon, the maker had borrowed of the plaintiff the same bonds, giving each year as security for their return a note for $5,000, signed by the maker and the defendant, the latter being surety. Upon each delivery of a new note the prior note was taken up, and when the note in suit
In one of the opinions it seems to he .assumed that, because Carpenter is dead and cannot testify as to.what took place between himself and Roderick at the time he asked Roderick to indorse the note in question, assumptions may be indulged in against Roderick which could not have obtained had Carpenter been living and able to testify. It -seems to me to be introducing a new rule of evidence to hold that because a witness has died who might have testified to a fact, therefore, that fact may be assumed.
The learned judge, in the opinion referred to, also raises a ques- ' tion regarding the sufficiency of the denial contained in the answer to set forth -the issue which was investigated at the trial. It was assumed during the progress of the trial that the answer was sufficient. No point of its insufficiency was made either upon the oral argument of this appeal or in the points of counsel; and it .would
The judgment appealed from should be affirmed, with costs.
O’Brien, J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.