2 Wend. 391 | N.Y. Sup. Ct. | 1829
The question presented by this case is, whether the plaintiffs can recover the excess received of Leavitt by the defendants over the $1000 advanced by them to James Keeler on the bill of exchange, which was deposited as security for that advance 1 That the defendants hold this excess without any right to retain it, cannot be, and indeed is not, contested; but it is contended that the plaintiffs in this cause have not the right to receive it. If they have a right to recover, it is not on the bill as parties to it; as payees and first endorsers, they must look for their in
This case is so unlike that of Wiffen v. Roberts, (1 Esp. R. 261,) which has been pressed upon the attention of the court, as to be clearly distinguished from it in principle. In that case, Roberts drew a bill in favor of Quid on Yates, who accepted, but did not pay. Wiffen, the endorsee, sued Roberts. The defence was, that the plaintiff knew that it was an accommodation bill, and besides, had. not paid the full value of it. Lord Kenyon decided that where a bill is given for money really due from the drawee to the drawer, or is drawn in the regular course of business, the endorsee, though he has not given to the endorser the full amount, may recover the whole, and be the holder of the overplus to the use of the endorser. But if the bill is an accommodation one, and known to be such by the endorsee, and he pays but part of the amount, he can only recover the sum actually paid.
If the bill in question had been given by Keeler and Mather to the plaintiffs for money really due, or in the regular course of business, and they, as endorsers, had passed it to the defendants for $1000, the defendants could have collected of the acceptors or drawers the full amount of it, and, in that case, they would have held the $500 as trustees of the plaintiffs, who might have recovered it of them in an action for money had and received. Under these circumstances, there would have been a privity of contract between the parties. The plaintiffs then would occupy the place that James Keeler, or those for whom he acted, now occupy. Then the defendants would have received directly from the plaintiffs the bill, and would have been liable for what they realized on it beyond the sum advanced. The latter branch
On the whole, I am of opinion that the defendants are entitled to judgment.