11 N.Y.S. 129 | N.Y. Sup. Ct. | 1890
Lead Opinion
This action was based upon four promissory notes drawn by the defendants Shannon and Bullock, dated May 19, 1882, whereby they jointly and severally promised to pay to their own order, for value received, four several sums of $2,287.50, aggregating $9,150. They were indorsed as alleged before maturity to ttie defendant Payne, and by him before maturity, and after they had been so indorsed, and after indorsement by himself for value, delivered to the plaintiff. The defendant Shannon only was served with the summons and complaint. He defended upon the ground that he had been induced by Payne to give the notes in payment for certain shares of stock, and by representations which were false and fraudulent, and so designed to he in order to get the notes. Payne represented himself to be owner of the stock, but was not in fact, and the fraud on this proof was accomplished, for he knew he was not the owner of any stock; knew what he said on that subject to be utterly without foundation; made the representation to obtain the notes therefor intentionally, knowing well that he was falsifying, and intending to do so, with an object in view. There can be no doubt that on such a state of facts as between him and the maker of the notes they had no validity. Here all the elements demanded by the adjudications are present. The obstacle, however, in the defendant’s path is that a third person has intervened, in no way connected with the representations, so far as ap- ' pears, and presumptively a holder for value. The possession of the notes, which were in form negotiable, and given for value received, as stated in them, imports that they were acquired for value in the usual course of business, without notice of any circumstances impeaching their validity; that they are owned by the person possessing them, and therefore he can recover against all prior parties. 1 Daniel, Neg. Inst. § 812; Collins v. Gilbert, 94 U. S. 753; Commissioners v. Clark, Id. 285; Brown v. Spofford, 95 U. S. 478. To the same tenor, see Abb. Tr. Ev. 389.
Assuming this to be the rule, is there aught in this case to relieve the defendant from its application to his defense? The plaintiff insists that, even if it would be effective in case the defendant’s obligation were not joint, yet, ' being joint, he must proceed further, and show that no consideration was received by his joint maker, Bullock. There is, it must be said, no direct testimony on that particular subject, and the presumption of value given may not have been overcome. Kinsman v. Birdsall, 2 E. D. Smith, 395, is an authority an that proposition. See, also, 2 Rand. Cow. Paper, p. 5, § 447, in which it is said a joint note implies a joint consideration. " See, also, Abb. Tr. Ev. 442, in which the author says: “It is not sufficient for one of several joint makers of a note to show that he received no consideration. He must show that neither of the others did. ” See, also, 1 Daniel, Neg. Inst. §§ 94-105; Tiedm. Com. Paper, §§ 156, 157. This rule is not so imperative, however, that facts and circumstances tending to overcome the implication of a joint
Ordered accordingly.
Concurrence Opinion
I concur in the result. The note having been obtained by fraud, the plaintiff was bound to prove himself a bona fide holder for value. Harger v. Worrall, 69 N. Y. 370.
The evidence did not prove that the note had been received for value. -That seems to be a mistake in the statement of the case. And as it had been obtained by fraudulent representations, the action could not be maintained, without proof that the plaintiff had become a holder for value.
A new trial should be directed.