127 A.D. 871 | N.Y. App. Div. | 1908
This action is brought to recover the unpaid installments due - ' xupon the following agreement: .
.“$1,000. Annuity.
“Payable Quarterly. Rochester, M. Y:, April 15, 1874.
“For value received,. I hereby promise to pay Mrs. Sarah Hamilton, the sum of $250 each, first day of January, April, July and October, from and after the day of the death of our father, Samuel Hamilton. These payments to be continued during the term of her life, and in case of her (Mrs. Sarah H.) death, the same shall be paid to her daughter (Julia A.) during her life.
“ARTHUR S. HAMILTON".”
The parties are brother and sister and the children of the late .Samuel Hamilton and Sarah Hamilton, his 'wife, both deceased. The complaint alleges that prior to the time of the making .and delivery of- this agreement the defendant had received from his father, Samuel Hamilton, large sums of money advanced-by his said father from his estate, and in consideration thereof as a -pro
Upon the trial the plaintiff produced and put in evidence the agreement, and. rested. The defendant then proved by his own testimony's a witness that at the date of the agreement, April 15, 1874, the plaintiff was over twenty-one years of age; that at that time he was in no way indebted to the plaintiff or to his mother, Sarah Hamilton, and that neither the plaintiff nor his mother paid him any valuable consideration for the agreement either at the time it was made or subsequently. The defendant then rested. The plaintiff thereupon moved for judgment for the amount of the pay
The plaintiff contends-that this agreement is a promissory note, under "the Revised Statutes in force at the time it was made (1 R. S. 768, §§ 1, 4), and hence, that it was not necessary that a consideration should be expressed -therein 'or alleged or proved in an action thereon; tliat the instrument, whether negotiable or not, imports a-Consideration. (Carnwright v. Gray, 127 N. Y. 92.)
It is not necessary to determine whether this instrument is technically a promissory note. It states on its face that it was given “ for value received,” and in the absence of evidence to the contrary, this is a sufficient acknowledgment or proof of consideration. (Rice v. Rice, 43 App. Div. 458; Prindle v. Caruthers, 15 N. Y. 425.)
It is not necessary to the validity of the agreement that the considerationj3hQ.nIcLpro.ceed from the plaintiff jyr her mother. ' The insti'umont is equally yglid_j|. the..consideration proceeded from Samuel.Hamilton's alleged in the complaint,. There is no proof fhat- it-,did not, and as the agreement-.imports a consideration,, we must assume that - there: was a sufficient .consideration proceeding from a proper source, in the absence of evidence to the contrary. It being conceded by the pleadings that the instrument was exe- • cuted upon the request of Samuel ’Hamilton, ánd the instrument acknowledging receipt of a consideration, it must be assumed that Samuel Hamilton furnished tii.e.consideration.,-- If.su.chus.-.lhe-.casp, the agreement is valid and enforcible in the hands of the'plaintiff or her mother,.. although .. neither of them furnished .any consideraHon-^nd althoughHamueh;Hamilt.o'n.,was 'iinder no- legal obligation to make tins provision for their benefit: (Rector, etc., v. Teed, 120 N. Y. 583 ; Horn v. Fuller, 6 N. H. 511; Eaton v. Libbey, 165 Mass. 218.)
Was there a delivery of this agreement to the plaintiff ? The complaint alleges a delivery to "the plaintiff. The answer alleges a delivery to Samuel Hamilton. There is no testimony of witnesses upon the subject. It is conceded that the defendant recognized this agreement as in force from 1876, when Samuel Hamilton died, until December 15, 1891, when Sarah Hamilton died, by making the quarterly payments to his mother, Sarah Hamilton, and from December 15, 1891, until November, 1897, by making payments thereunder to the plaintiff. The plaintiff produces the agreement at the trial and offers it in evidence. It must be assumed that her possession is lawful and that it antedates the payments made thereon by the defendant to her. The payments aré a sufficient admission by the defendant of a delivery of the agreement to the plaintiff, in the absence of all evidence to the contrary. ■ ' ■
It follows that the plaintiff is entitled to recover for all payments maturing within six years prior to the 9th day of July, 1907.