19 Conn. 190 | Conn. | 1848
The liability of the defendants to the plaintiffs on the note in question, by reason of the acceptance or payment, by the latter, of the drafts drawn on them, by the former, depends entirely on the terms of the original agreement between the defendants and the firm composed of Dulles Fisher, when said note was executed. Whatever agreement was subsequently made between the firm of Wm. De Forest Co. and Dulles Fisher, or the plaintiffs, as to the purpose for which the note should be held or used, by either of them, was not binding on the defendants, because, as must be assumed on this motion, Lewis, one of the defendants, signed the note merely as a surety for Wm. De Forest <f' Co., and was not a party, and did not assent, to such subsequent agreement. Although the note is absolute in its terms, it is competent for the defendants, in an action brought on it, either by the payees, or by their indorsees, with notice of the original agreement under which it was made, to avail themselves of any defence growing out of such agreement, and consequently, to show what were the terms of that agreement; and as the plaintiffs, who here claim as indorsees of the note, consist in part of two of those payees, Dulles ⅜ Fisher, they must be deemed to have had such notice, when the latter endorsed it to them.
If, as was claimed by the defendants, on the trial, the
The plaintiffs, however, claimed, that the agreement was, that the note should be held by Dulles Fisher, as a security to them for any advancement of money, to the amount of two thousand dollars, to Wm. De Forest Co., to aid them in their India-rubber business, and also as a security to any other person or persons to whom Dulles <§• Fisher might indorse said note, for any advance of that sum, which the persons to whom they should indorse it might make to Wm. De Forest cf- Co., in that business ; that Dulles <$• Fisher never made any such advancement on the note, but that they indorsed it to the plaintiffs, after the formation of the partnership between the plaintiffs ; and that thereupon the latter advanced said sum to Wm. De Forest <§• Co., in said business, which had never been repaid. The court instructed the jury, that under these circumstances, the plaintiffs had a right to recover, and submitted the facts to them on the respective claims of the parties. The facts were found as claimed by the plaintiffs.
This charge appears to us to be entirely unexceptionable ; and, indeed, we do not understand that the principle embraced in it is controverted, by the defendants. The note
The defendants, on the trial, requested the court to instruct the jury as to the effect of the renewal, by Dulles <§• Fisher, of their two first acceptances of the drafts drawn on them, by the firm of Wm. De Forest <f- Co. ; and of the subsequent acceptances, by the plaintiffs, of the drafts drawn on them, by the same firm ; and of the transfer, by Dulles Sf Fisher, of the balance of their account against Wm. De Forest Co. (which included the acceptances by the former, for the latter,) to the plaintiffs, with the assent of Wm. De Forest C'o. The omission of the court to notice these points specifically in the charge, constitutes no ground for a new trial, because they were unimportant, excepting on the supposition that an advance or loan had been made, by Dulles 6f Fisher, to Wm. De Forest <Sf Co., as claimed by the defendants ; and the jury found, that no such advance or loan was made. It appears, therefore, that the state of facts did not exist, upon which those questions could arise. Hence, it becomes unnecessary for us to examine them. .It is a sufficient reason for not disturbing the verdict, on this ground, that it conclusively shows that the defendants have sustained no injury, in consequence of these points not being particularly presented to the jury.
them, which constituted that loan, in connexion with the fact that such account was, from time to time, rendered by the plaintiffs, to Wm. De Forest fy Co. In point of fact, however, it appears, that the amount of those acceptances was not debited, by the plaintiffs, in their account, to Wm. De Forest <$f Co., after they were paid by the plaintiffs ; but that the acceptances themselves were charged at the time when they were given. It is obvious that the entry, in the account of the acceptances and their amounts, when such acceptances took place, and consequently before any payment had been made by the plaintiffs, by reason of their liability thereon, amounted only to a mere memorandum of the transaction, and constituted, of itself, no charge or evidence of indebtedness, by Wm. De Forest Co., to the plaintiffs; since the latter, until they had paid those acceptances, could have no claim or right of action against the former. But, in accordance with the course of the argument before us, we put the case, so far as the present question is concerned, on the ground that the effect of thus charging these acceptances, is substantially the same as if the moneys paid on them, by the plaintiffs, had been actually charged thereafter. Still the circumstance, that the charge was made in the manner that has been mentioned, is one which might properly be considered by the jury, in coming to their result, as to the intention with which such entry or charge was made, provided the court below was correct in submitting to them the question of such intention.
It has not been, nor do we think that it successfully could be, claimed, that, if the moneys advanced on the acceptances, and the avails of the goods sold and cash received, by the plaintiffs, had been entered in distinct accounts, instead of being blended together in one, the law would, in the absence
We are brought then to consider the effect of blending
The views expressed by us, on this point, are fully sustained, by the cases. In addition to those cited by the plaintiffs, we would refer to Pease & al. v. Hirst & al. 10 B. & C. 122. (21 E. C. L. 38.) and Lysought v. Walker, 5 Bligh, N. S. 1.; the first of which is directly in point. We think, therefore, that this part of the charge, was also unexceptionable.
The result is, that a new trial should not be advised.
New trial not to be granted.