1 Trans. App. 352 | NY | 1867
On the 2d of November, 1859, the plaintiffs were the owners and holders of four promissory notes made by one J. H. Whipple. The whole amount due thereon for principal, interest, and protest fees, was on that' day $1,031.25. Two of the notes were over due, uoon which suits had been commenced by the plaintiffs against Whipple, and on the said 2d of November, plaintiffs agreed to accept Whipple’s note for the amount of said four notes, at forty-five days, to be indorsed by the defendant Saunders. On the 22d of November, 1859, plaintiff’s attorney received the note in suit indorsed by Saunders, delivered up to Whipple his four notes, and Whipple paid said attorney’s
The supreme court was clearly correct in holding that the plaintiffs were entitled to recover against this defendant upon the note in suit, to the extent that they were bona fide holders thereof.
In Van Duzer agt. Howe, (21 N. Y., 531) this court decided that a party who entrusts another with his acceptance in blank is responsible to a bona Ode holder, although the blank be filled with a sum exceeding that fixed as a limit by the acceptor. But the court erred in holding that the plaintiff's were not bona fide holders of the two notes, over due, for the payment of which, the note in suit was equally received, as for the two notes not then due. The facts are indisputable that the note in suit was transferred in payment of the four notes of Whipple then held by plaintiffs. The facts in this case are not distinguishable from those presented in Brown agt. Leavitt, (31 N. Y, 113). It was then stated, that the note in suit in that case was indorsed and delivered by persons composing the firm of Zebley & Co. to the plaintiff’s testator, before it fell due, in payment, so far as it went, of a larger note then held by the testator and over due. It was received with other notes, and a bal
The judgment should be modified by increasing the amount of the verdict from $239.65 to the amount due upon the four notes, at the date of the verdict, and that judgment for that sum and interest thereon be affirmed, with costs.
If the parties cannot agree upon Such amount, then the supreme court is directed to ascertain the same, and render judgment for the plaintiffs, with costs, accordingly.
The exception taken by plaintiff’s counsel, upon the trial to the charge of the judge as given, and to the refusal to charge as requested, present the only real question in the case. That question is whether a party taking negotiable paper before maturity, in payment of a debt past due, constitutes a holding for value. This precise question was decided affirmatively in Brown agt. Leavitt, (31 N. Y., 113), by this court. In Young agt. Lee (2 Kern., 551), the like rule was applied when the debt for which the note was taken had not become due. It is manifest that there is no distinction in principle between a case when the debt is due and when not due. These cases should put an end to the question in this state. The counsel for the respondent insists that the rule cannot apply to a case when the debt is due, for the reason that a new promise by a debtor does not satisfy or extinguish an existing debt. He overlooks the reason for the latter rule, that is, that .such new promise is no consideration for an agreement to discharge the debt. It is nothing more than promising to do what the debtor is already bound to do.
In the present case there was a consideration, viz: the
The judgment must be reversed and a new trial ordered, costs to abide event.
Reversed.