45 N.Y. 762 | NY | 1871
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The defendants proved that the note in suit had been diverted from the purpose for which it had been delivered to Smith by the maker as his agent. This cast upon the plaintiff the onus of showing that it was a bona fide holder, or had succeeded to the rights of such a holder. (Edwards on Bills, 319; Wendell v.Howell, 9 Wend., 170.) The facts found by the referee show that the plaintiff was such holder. The counsel for the appellant insists that the plaintiff's president received the note under circumstances of suspicion sufficient to put him upon inquiry, and that such inquiry would have led to a discovery of the diversion. There is no exception in the case raising this question, but if there was it would not be available to the defendant. The only circumstances relied upon in support of the position are that Colborn, from whom the plaintiff received the note, kept his accounts with it as agent, and that the president of the plaintiff knew that he was embarrassed in his circumstances. But it was also proved that he was doing business as a broker in New York, and was in the habit of procuring notes made and indorsed by others to be discounted by the plaintiff, of an amount as large as the one in question, which had been paid. Under these facts there was nothing to excite suspicion as to his ownership of the note, much less to induce a belief that the plaintiff did not take it in good faith. (See Magee v.Badger,
All concur.
Judgment affirmed.