30 Barb. 338 | N.Y. Sup. Ct. | 1857
I am inclined to believe that the plaintiff in his complaint, and the referee in his report, have fallen into an error in calling the transaction between Smith, acting in behalf of Forward & Smith, and the defendant, a sale and transfer of the draft or bill of. exchange from the firm to the defendant. The bill being drawn on the defendant, whether accepted by him or not, was perhaps the subject of a sale to him ; although this may not be entirely clear. But the mistake, if one was made, is unimportant, and does not affect the rights of the parties. The facts upon which the plaintiff predicates his right to recover are substantially stated in the complaint, and reported by the referee to have been proved upon the trial. The judgment is consistent with the case made by the complaint, and no objection can be taken, for the reason that the transaction has been called a
Assuming that the plaintiff’s allegations were true, and that the report of the referee is supported by the evidence, the plaintiff and his partner were in possession of a bill, valid in their hands, drawn by their debtor, to the order of, and indorsed by, two other persons, on the defendant. If it was accepted, then it constituted also a valid claim against the defendant, as acceptor, absolutely liable to pay it. If it was not accepted, the holders might at once have prosecuted it for acceptance, and either secured the liability of the defendant, or, if acceptance was refused, had their action, immediately, against the drawer and indorsers. This valuable paper, and their legal rights, they parted with to the defendant upon his promise to pay a given amount. The parting with that paper, under the circumstances, was a detriment to the holders. It was an injury to them, and therefore sufficient to sustain the promise. But the receipt of the bill was a legal benefit and advantage to the defendant. The payment by him was not a voluntary payment of the debt of a third person, without request, which could not give an action against the party benefited by the payment. The draft was a written request by the drawer to pay the amount specified in the bill, and if the defendant, the dniwee, had funds of the drawer in his hands, the payment discharged him to the amount paid ; and if he had not funds, then it gave him a legal claim upon the drawer for the amount of the bill, and the possession of the bill would be evidence of payment. ( Wing v. Terry, 5 Hill, 160.) In this aspect there was a good consideration moving to this defendant, to support the promise. The bill was for $913.50, payable three months from the time of the alleged agreement, which was to pay $850 presently. The difference in the times of the payment, and between the amount paid
That the contract was void by the statute of frauds cannot be objected, for the reason that there is no evidence that there is such a statute in Canada, or if so, what are its provisions, The variance, if any exists, between the pleadings and proofs, in respect to the dates, amounts and times of payment of. the
There was no error in the rulings of the referee in the admission or exclusion of evidence. The parol evidence of the contents and acceptance of the draft of Thompson on the defendant, the subject matter of the agreement, was properly admitted. It was, if in existence, in the possession of the defendant, and the nature of the action was sufficient notice to him to produce it on the trial, if its production was necessary. The objection to evidence of acceptance, that it was not averred in the complaint, was not taken, and was therefore waived. The bill drawh by Forward & Smith on the defendant was properly admitted in evidence as a part of the res' gestee, and the solvency of Thompson and the prior negotiations between Thompson .and the defendant for the securing of Forward &
The judgment must be affirmed.
Hubbard, Pratt, Bacon and W. F. Allen, Justices.]