9 Barb. 214 | N.Y. Sup. Ct. | 1850
The defendant, Samuel A. Sealy, was indebted to Isaac Plato upon a note for $300, with the interest. Plato died, and his mother, Huldah Plato—who was supposed to be his only next of kin, and as such entitled to the money due upon the note—without authority as personal representative or otherwise, in her own name, indorsed over the note to one Robert Roberts by an indorsement in the following words:' “ Pay to Robert Roberts, or order, the amount of the within note. Huldah Plato.” Roberts then requested the defendant to pay or become accountable to him for the note. And thereupon the defendant made and delivered to Roberts the note upon which this suit is brought, for the sum of $300, payable to
Robert Roberts, on the 16th day of March, 1846, the day of the date of Sealy’s note to him, borrowed from the plaintiff, Albert Gr. Hedges, the sum of two hundred dollars, for which he gave his own note of that date, and at the same time and as part of the same transaction, left the defendant’s note for the $300 with the plaintiff as collateral security, but did not Roberts died insolvent, leaving his note to the plai The consideration of the note from Sealy the defem erts was the note of Sealy to Isaac Plato. To this nj had no manner of title, nor had he any right or authority to col- ^ lect the money due upon it, or discharge the defendant lr<W " payment. The note therefore of the defendant to Robei^Bs^whii is the foundation of this action, was entirely without consideration, and as between Roberts and the defendant it could not have been recovered. If the action on this note was by Roberts himself ]ie would fail; and it remains to be seen whether upon authority the plaintiff has any better right to recover than Roberts would have had if he had remained the holder.
The plaintiff took the note upon a good consideration, for he loaned his money upon the security it afforded. The delivery over to him by Roberts was sufficient to pass such title as Roberts had, and the code of procedure enables the plaintiff to prosecute in his own name. Although the plaintiff took the note upon sufficient consideration, and the transfer was consummated by the actual delivery, yet the plaintiff is not a bona fide holder, or indorsee, and entitled as such to recover against the maker, if the proof shows that he had a good defense against it in the hands of Roberts. To entitle the plaintiff to protection from such a defense, in addition to the valuable consideration paid by