Herrick v. Guarantors' Finance Co.

68 N.Y.S. 560 | N.Y. App. Div. | 1901

O’Brien, J.:

It. will be seen that the note and the guaranty are identical as to the names of the parties, the amount payable, the date and duration of time and the place of payment. And the evidence shows that in every transaction herein appearing the note in evidence and the guaranty went together until they came into the possession of the J. Walter Thompson Company, when they were bought by J.. H. Herrick & Co., and were thereafter presénted at the bank for payment and protested. It is not denied that they were both given as alleged by the plaintiff, excepting that there is a denial that the guaranty was given to go with this identical note.

From the similarity in date and amount of the note and guaranty and the fact that they were always together, the inference is fairly to be drawn that the guaranty was given to assure the. payment of this particular note. It was shown that the note was not paid, and that thereafter the defendant refused to honor the guaranty. The making of the note is admitted, and it bears the indorse, ment of Wm. J. Hendrick and of J. H. Herrick &. Co., so that a complete chain is there to be found. The testimony that Mr. Lewis gave the note and guaranty to J. Walter Thompson with no explanation of how Mr. Lewis became possessed of them, and that Mr. Thompson loaned money to Mr. Herrick is not material. It is not disputed that Mr. Thompson obtained the note for value with the guaranty, and.Mr. Herrick, therefore, obtained a good title. A guaranty accompanying a negotiable, note would seemingly be transferable in the same way as the note and would come under the law merchant.

The only weakness in the plaintiff’s case on the question of title to the note is the fact that no sufficient proof was made that it was duly indorsed. If objection had been made that the indorsement on the note was not proven to have been made by the indorser, it would have raised a serious question. The note, however, being admitted and the point as to the indorsement not having been made but presumably waived, the learned trial judge was justified in concluding that the transfer of the note to plaintiff was established. The guaranty being in terms given to secure the holder of the note, there was sufficient evidence to support the verdict as directed, and the judgment and order accordingly should be affirmed, with costs.

Yah Bbuht, P. J., Rumsey, McLaughlin and Hatch, JJ., concurred.

Judgment and order affirmed, with costs.