1 Misc. 145 | New York Court of Common Pleas | 1892
Plaintiff sued to recover from,defendant Wood, as indorser, the amount of a promissory note made by one Edward R. Teller to the order of Wood, and alleged to have been indorsed, negotiated, and delivered, be
On the trial defendant Wood sought to establish an oral understanding substantially in accord with the agreements above mentioned. Some of his testimony was excluded, while in other respects it was admitted; but when both sides concluded the introduction of evidence, the fact of the agreements by plaintiff’s officers, with the sanction of the board of directors, sufficiently appeared from defendant's testimony. Thereupon plaintiff’s counsel requested the court to direct a verdict for plaintiff, which was opposed by defendant’s counsel, who asked to be permitted to go to the jury on the question of the agreements. The court granted the motion, and directed a verdict as requested, assigning as the ground therefor that the paroi agreements were incompetent to vary or contradict the terms of the indorsement, and defendant’s counsel duly excepted. The conclusion of the evidence offered, and the direction of a verdict, were errors for which the judgments and order appealed from must be reversed. As between the indorser and his immediate indorsee it is always competent to show by paroi evidence what the consideration for the indorsement was, and that it has failed. 1 Rice, Ev. p. 274; 2 Rice, Ev. p. 1137, and cases cited; Rand. Com. Paper, § 565; Bookstaver v. Jayne, 60 N. Y. 146; Isaacs v. Jacobs, (Com. Pl. N. Y.) 8 N. Y. Supp. 344. So, also, it is a familiar rule in equity that paroi evidence is admissible and competent to show that a written instrument which is absolute on its face was given and accepted as security only, (Horn v. Keteltas, 46 N. Y. 606,) and, though equitable relief was not demanded by answer to the complaint, and the court below was without jurisdiction to grant affirmative equitable relief, defendant could, pursuant to the provisions of the Code of Civil Procedure, (section 507,
“ A defendant may set forth in his answer as many defenses or counterclaims, or hot-h, as he has, whether they are such as were formerly denominated legal or eauitable. ”