60 A.D. 201 | N.Y. App. Div. | 1901
■ This action was brought upon a promissory note dated January 15, 1900, made by one Bussell to the defendants James A. Holden and Eugene L. Ashley, and by them indorsed for the accommodation of Bussell and delivered to the plaintiffs. Bussell, although a nominal defendant, was not served and did not appear. The indorsers alone defend. Although they answer separately the defense of each is substantially the same, and is to the effect that the note was given for a balance of account due to the plaintiffs from the dens Falls Umbrella Company, which was sold to Bussell upon the representation and warranty that the account would be a valid and subsisting claim against the dens Falls Umbrella Company, a bankrupt, and provable and allowable as such in said bankruptcy proceedings; that at the time of the delivery of the note the account was assigned to Bussell by the plaintiffs by a writing under their hands and seals, and that was the only consideration for the making of the note. The answers then allege that on the 4th of January, 1900, which was before the making of the note, an involuntary proceeding in bankruptcy had been begun against the dens Falls Umbrella Companythat it was adjudged a bankrupt on the 12th of February, 1900; that Bussell endeavored to prove the claim which had been assigned to him against the estate, but the account was objected to by certain creditors because it appeared that within less than four months from the time the proceedings had been commenced an illegal preference had been received by the plaintiffs, in
At the trial the defendants claimed and were awarded the affirmative of the issue. It necessarily followed that the plaintiffs were entitled to recover upon the note unless the defendants established the affirmative defense alleged in the answers. They proved the assignment of the account to ¡Russell; that the Glens Falls Umbrella Company, had been adjudged a bankrupt; that the assignee had attempted to prove the account as a claim against the corporation, and that he was not permitted to do so for the reason that the assignors had received an illegal preference as alleged in the answers. Various questions were asked, the answers to which were excluded. It is claimed that if the evidence thus asked for had been admitted it would have tended to prove the making to Bussell by the plaintiffs of the representations set up in the answers, and the contract of warranty between the sellers and the purchaser of the account to the effect mentioned in the answers of the defendants.
It is not necessary, in the view we have taken,of the case, to consider the question whether this evidence was properly excluded or not. It may be conceded for these purposes that if the evidence had been received it would have proved substantially the facts alleged in the answers, but in our judgment those facts, if they had been proved, would not have constituted a defense on the part of the indorsers against the note.
The same point has been substantially decided in the case of Gillespie v. Torrance (25 N. Y. 306). In that case the accommodation indorser of a promissory note had been sued upon the note; the note had been given as the purchase price of certain goods; the indorser set up a breach of warranty as to the quality of the goods, and relied upon that to establish in his own behalf a defense of a failure of consideration. It will be seen, therefore, that the precise question presented there is presented in. this case. In that case, as in this, there was no counterclaim, but a breach of the contract of warranty between the purchaser of the chattels, who was the maker of the note,
Van Brunt, B. J., O’Brien, Ingraham and Hatch, JJ.. concurred.
Judgment affirmed, with costs.