157 N.Y.S. 852 | N.Y. App. Div. | 1916
This action is brought to recover the amount of four drafts drawn by the defendant at Denver, Colo., directed to itself at 165 Broadway, Yew York city, dated February 6, 7, 8 and 10, 1912, whereby it required the payment to the order of the plaintiff of the respective sums of $653.89, $1,914.50, $1,840.89 and $727.50. The Ledge Consolidated Mining Company, a Colorado corporation, located at Silverton, San Juan County, Colo., and operating mines in that State, entered into an agreement in writing dated September 17,1910, with the defendant, United States Zinc Company, aNew York corporation, having offices at Denver, Colo., its home office in Hew York city, and smelting works at Blende, Colo. By this agreement the zinc company bought the mining company’s output of zinc concentrates up to 400 tons per month for the period of three years, at certain prices per ton based on the relative amounts of gold, silver, lead and zinc therein contained. The mining company shipped ores and concentrates to the zinc company under this agreement, and as assays were completed the value of the ore and concentrates (less the smelting charges) was credited to the mining company by the zinc company on its books, and remittances made by the latter to the former from time to time. On January 13,1912, the mining company made a bill of sale to W. A. Smith, agent, of San Juan county, Colo., by which in consideration of the sum of $10,000 to it in hand paid, it sold to Smith all concentrates owned by it, all returns for ores and concentrates sold and not
“This same doctrine is held in Simpson v. Davis (119 Mass. 269); Delano v. Bartlett (6 Cush. 364), where it was held that the evidence on both sides being applicable to the same issue of consideration, the jury were properly instructed that the burden was throughout on the plaintiff to satisfy them, on the whole evidence, of the consideration of the note. This doctrine is recognized in Carnright v. Gray (57 Hun, 518) in both the prevailing and dissenting opinions.
“ The rule is laid down in 1 Daniel on Negotiable Instruments (§ 164), where it is said: ‘ If the whole evidence offered on both sides leaves it in doubt whether there was a good consideration or not, the plaintiff fails of making out his case and the defendant will be entitled to a verdict.’ * * *
“General expressions may be found that the words ‘ value received ’ are, prima facie, sufficient, and that the plaintiff may rest on them; the defendant then being permitted to give evidence of a want of consideration. But the point we are considering is where the burden lies on the whole evidence, and we think it lies with the plaintiff.”
In Bringman v. Von Glahn (71 App. Div. 537), which was an action upon a promissory note made by defendant in favor of plaintiffs’ intestate, defendant admitted the making and delivery of the note, its non-payment and the status of plaintiffs, but denied that the note was given for value or that any consideration was given therefor. The court said:
“When the plaintiffs read it [the note] in evidence they became entitled to the presumption that it was £ a valid obligation based upon a good and legal consideration, and the burden of showing that there was a want of consideration rested upon the defendant.’ (Durland v. Durland, 153 N. Y. 67, 74 et seq.) They could, therefore, then safely rest. If the defendant had offered any evidence that showed or tended to show want of consideration, then it was incumbent upon the plaintiffs to show by a fair preponderance of evidence upon the whole case that
In Lombard v. Bryne (194 Mass. 236) the court said: “ On the question whether there was a consideration for the note, the burden of proof was on the plaintiffs throughout the trial. The evidence offered by the defendant was on that issue, and was intended to meet and answer the contentions of the plaintiffs. If, on the whole evidence, the matter in dispute was left in an even balance, the plaintiffs would fail. This is not like a case where the defendant seeks to avoid the .effect of prima facie evidence by the proof of an independent fact outside of the issue, whereby he is relieved from liability. In such a case the defendant has the burden of proving the fact, and if he fails, the original prima facie case prevails.” To the same effect is Perley v. Perley (144 Mass. 104). We believe the case at bar comes within this line of authorities. Plaintiff’s only consideration for the making and delivery of the drafts in question was „ his ownership of certain undisputed claims of the mining company against the zinc company, evidenced by a hill of sale given to him by the former company and which, when recognized by the latter, substituted him as the creditor to whom payment was to be made. In giving its drafts, defendant was paying and discharging its obligations pro tanto to the mining company, and plaintiff had no right to the drafts unless he held a valid and enforcible transfer from the mining company of the property transferred, or its proceeds. The defendant met the very issue of consideration tendered by plaintiff by endeavoring to prove that there was an entire failure or absence of such consideration, because plaintiff never acquired title, under the bill of sale to him, of any property whatever belonging to the mining company in defendant’s possession, or the proceeds thereof in its funds, because the mining company had previously parted with all right, title and interest in the same property and the same proceeds to Smith. It did not succeed in convincing the jury that its contention was correct, but while we do not mean to intimate that their finding was not fully warranted, the defendant was entitled to have the issue submitted to them in a charge which placed the burden
The only other question which we feel called upon to disclose is that presented by defendant’s exceptions to the refusal to receive in evidence proof of its third separate defense. The facts sought to be established were as follows: After the events heretofore stated and on February 13, 1912, defendant was served in Colorado with a garnishee summons and writ of attachment issued out of the District Court, city and county of Denver, in an action brought by E. W. Hollis, trustee, against the mining company to recover $5,500. Similar summonses and writs were issued and served on defendant in suits brought against the mining company (1) on February sixteenth in
There are two objections to the binding force of the Colorado judgment, either of which would seem to be fatal. The first is that when the garnishee proceedings were begun and the citations issued, the zinc company had paid Hardinge in full for his interest under the bill of sale, the drafts having been given and received as such payment, and the indebtedness to the mining company having been paid and discharged to that extent as the record fairly establishes, so that as to this fund of $5,000 it was beyond the reach of garnishment or attachment. The second is that the Colorado court never had jurisdiction to make any valid judgment as against Hardinge. He was a non-resident of Colorado, being a resident of Chicago, 111. He is not shown to have had property of any kind in Colorado. The drafts were out of that state, having been mailed to and received by him in Chicago and then transmitted to New York city for collection. The defendant was a New York corporation and the drafts were to be paid in that State. Neither the person nor property of Hardinge, being in the State of Colorado, and he never having appeared or, answered in the action in that State, the Colorado court never acquired jurisdiction over him and its judgment is not binding on him. The
The judgment and order appealed from are reversed, and a new trial ordered, with costs to appellant to abide the event.
Clarke, P. J., McLaughlin and Davis, JJ., concurred; Smith, J., concurred on first ground.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.