2 Abb. Ct. App. 5 | NY | 1864
By the Court.
The plaintiff’s intestate was nonsuited on the ground that his own evidence established that he was not the owner of the note, and, also, that the note was. void for usury. The supreme court, at general term, only considered the question of title to the note, and the exceptions to the rejection of evidence on that point, and, arriving at the conclusion that the nonsuit was sustainable on the ground that the plaintiff had affirmatively shown title out of himself, omitted considering the further question whether he had, also, as was held at the circuit, shown that the note was usurious.
. 1. The note was payable to bearer, and transferable by mere delivery. The plaintiff was in possession of it, and produced it on the trial. This was sufficient evidence of his title; and if it were any defense, to be urged by the defendants, that some person other, than the holder was the real owner, the onus was on them of establishing it. Indeed, I cannot see how the defendants could, for such reason, defeat the action, except, possibly, on the ground that every action must now be prosecuted in the name of the real party in interest; and then, the objection should have been distinctly taken by demurrer or answer. It seems to me no defense to the maker of a negotiable promissory note, transferable by mere delivery, that, as between the holder and a former owner, there has not been, in judgment of law, an effectual transfer of the paper. But let this pass.
Here, after excluding all affirmative evidence offered by the holder to show title in himself, and adroitly foisting into the case a receipt given by him at the time of the alleged transfer, which is held to be the whole contract, in relation thereto, and that, a contract of bailment, not to be explained or contradicted by parol, the holder is nonsuited, for the reason that it appears by his own evidence that he was not the real owner. Clark, the original payee, who was called by the plaintiff to disprove the allegations of usury, on cross-examination was asked whether, at the time he transferred the note to the plaintiff, he took back any writing with regard to it, whereupon he answered in the affirmative. .Subsequently, when interrogated unnecessarily by the plaintiff’s counsel, as to the terms of the transfer, the question was objected to, on the ground that the transaction was in writing, and the objection sustained. I am inclined to think that this ruling was incorrect. It was, so far as the defendants
“ Received of Ira M. Clark, a note against J. P. Alger, indorsed by W. S. Alger, for six hundred and twenty-nine dollars and seventy-five cents, which I agree to account for on demand. Josiah Eatoh.”
The paper being thus in evidence, the question, “ What was the contract of sale of the note, if any ?” was excluded, on objection of the defendant, that the receipt contained the whole contract, and parol evidence was not admissible to add to or explain it; and also an offer to show that, at the time the receipt was executed, the witness sold and delivered the note to the plaintiff upon a valuable and full consideration, was rejected under like objection, and for like reasons. Having thus succeeded in excluding all affirmative proof of ownership of the note, on the part of the plaintiff, which was quite unnecessary, unless the writing called a receipt conclusively showed title out of him, he is nonsuited on the ground that it appeared, by his own evidence, that he'was not the true owner.
These rulings, and the result attained thereby, seem to me clearly erroneous. If it be true, as it is not, that the plaintiff was estopped from showing a sale and delivery of the note to him for a valuable consideration, the receipt did not furnish conclusive evidence that the title was not in him. He was the holder and presumptive owner, and the evidence furnished by the paper did not conclusively overcome that presumption. It is not pretended that it did, unless it is, upon its face, a complete an'd perfect contract of bailment. In the court below, two of the judges held it to be that, and nothing else, whilst another was equally positive that it imported a contract of sale. The truth is, that it is not a complete agreement of either description. It is an acknowledgment.by the plaintiff of the receipt of the note from Clark, and a further acknowledgment of liability for it, but the paper is wholly silent as to the kind of
But again, after the judge had ruled that the receipt imported a bailment, it was offered to be proved, by the testimony of both of the parties to it, that they made a contract of sale, and-that the note was delivered to the plaintiff in pursuance thereof; and, farther, that, if the receipt imported a bailment, it failed to express the true agreement between the parties. This proof, on objection of the defendants, was excluded, on the ground that the paper contained thewholé contract of transfer, and parol evidence was inadmissible to add to or explain it; and also that the action was not one to reform the instrument on the ground of mistake. This -ruling cannot be legally sustained. The defendants were entire strangers to the receipt, claiming nothing under it, and having no interest in the note, the subject matter of it. Their rights could not be affected, in the slightest degree, by the alleged transfer, for a payment of the note to the plaintiff would be just as beneficial to them as a payment to Clark. Both Clark and the plaintiff agreed that the true contract was a sale of the note, and both, also, agreed that the written contract, if rightly construed by the court, was not the true one; yet, at the instance of the defendants, who were strangers to the transaction, they are held to an agreement which they both say that they did not intend to make. There was no question as to reforming the contract, for the only parties interested in it were agreed as to its nature; and, if it was a mutual mistake, and they could correct it at all, they could do it at the trial. Evidence was offered for that purpose, and re
2. It was equally an error to have nonsuited the plaintiff on the ground that he had, himself, proved that the note was usurious and void. The note in suit was given in renewal of one for six hundred dollars, made in July, 1857, by one Samuel Burpee and John P. Alger, and payable to Ira M. Clark, or bearer. The circumstances under which the last mentioned note was given, as the plaintiff showed by two witnesses, were these: In July, 1857, Clark (who resided at Newport, in the State of Hampshire, but was temporarily staying at Saratoga Springs) was applied to by Burpee, at the Springs, to lend him six hundred dollars, which he stated he wanted to pay a note he was then owing at the savings bank, Springfield, Vermont. The security he proposed was satisfactory, but Clark informed him that he had not the money with him; that it was at Newport, in the bank, and that it would be attended with considerable trouble and expense to go after it. Burpee inquired as to the probable expense, and was told twenty-five dollars at least; and he said he would give him (Clark) twenty-five dollars if he would go and get him the money; and as he wanted it to pay cut at Springfield, he would meet him (Clark) at Bellows Falls the following Friday, and bring a note with one or more names to it of persons (among them John P. Alger) that had been suggested as sureties. Clark promised to go immediately; and did. go the next morning to Newport, and from thence to Bellows Falls on Friday, and there remained waiting for Bur-
It was upon this proof, substantially, it was adjudged that the plaintiff had himself shown the note to be usurious, and was accordingly nonsuited. I regard this a plain error. The evidence tended to show that the twenty-five dollar note (which it was claimed in.the pleading, was without any legal consideration, and rendered the six hundred dollar note void for usury) Was given to repay Clark for trouble and expense incurred by him, at the request of Burpee the borrower, in going to Newport for the money, and that the amount of the note was only two or three dollars more than the actual expenses of the trip. If this were so there was no usury. But, manifestly, the proof did not disclose a transaction usurious per se. Whether or not the trip to Newport for the money was intended as a cover for usury, was a matter for the consideration of the jury. If the jury believed that it was undertaken in good faith, at Burpee’s special request, and upon his promise to reimburse for the trouble and expense of the journey, then the taking of the twenty-five dollar note did not render the transaction usurious. Even when the lender without any special agreement with the borrower, in addition to lawful interest, takes a commission by way of compensation for trouble and expense necessarily incurred in and about the business of the loan, the transaction would he supported, provided such commission was not intended as a device to cover a usurious loan.
The judgment should be reversed and a new trial ordered,' with costs to abide the event.
All the judges concurred.
Judgment reversed, and new trial ordered, costs to abide event.