Kimball & Kiniston v. Huntington

10 Wend. 675 | N.Y. Sup. Ct. | 1833

My the Court,

Nelson, J.

The plea puis darrein continue anee waived all previous pleas, and on the record the cause of action was admitted to the same extent as if no other defence had been urged than that contained in this plea. By operation of law the previous pleas are stricken from the record, and every thing is confessed except the matter contested by the plea puis. 6 Bacon’s Abr. 479. Cro. Eliz. 49. 1 Ld. Raym. 693. Bull. N. P. 309. 1 Salk. 178. 2 Wend. 300.

The only quest ms to be litigated upon the record were, 1. Whether Kiniston had assigned his interest in the note to his co-plaintiff Kimball, and 2. Whether the defendant had notice of such assignment before the execution of the release. If proper attention had been bestowed upon the pleadings, only one of these questions could have been raised, as a denial of either fact was a sufficient answer to the replication. The court may, on special application, allow a defendant to rejoin several matters, if necessary for the “ attainment of justice 2 R. 8. 356, § 27; but it does not appear that any such application was made in this case.

The defendant, in a brief submitted, assumes that the cause of action is not confessed, and objects to the admissibility of the due bill in evidence under either cou it iu the declaration, and the ground upon which he places this objection is, that it is not a note, within the statute. Even if his assumption was right, the argument he derives from it could not be sustained. The instrument is a promissory note, within the statute, as it contains every quality essential to such paper. The «cknowledgment of indebtedness on its face implies a promise to pay to the plaintiffs, and the payment by its terms is to be in money absolutely, upon demand. Chitty on Bills, 41, 324,334. 1 Johns. R. 143. Neither the acknowledgment of value received or negotiable words are essential to bring this paper within the statute. 9 Johns. R. 217. 3 Caines, 136. It is unimportant, however, to pursue this objection, as it could not-be properly raised on the trial.

It is objected that there is no evidence in the case to shew that the $160 or any other sum was paid by Kimball to Kiniston, in consideration of the assignment. The proof relied on is, that Kimball took the note on a settlement of accounts with Kiniston, and allowed him therein for his share or moiety. If the evidence on this point was competent, it was fairly submitted to the jury, and their verdict must be conclusive.

It is said, admitting that half the note was accounted for, it still would not appear that the $160 was paid, as alleged in the replication. The half of the note was $162,50, which of course includes the $160 alleged to have been paid. Proving more than the amount certainly cannot be objected to, or prejudice the plaintiff. If the assignment had been in writing, then there might have been A variance between the instrument proved and the one described; but no such objection could be taken here, as the whole rested in parol.

It is said the evidence of Eunice Hutchinson in relation to the settlement was improperly admitted. She proved that about six years before the trial her father and Kiniston were together with their books to make a settlement of their accounts ; that she was a part of the time in the room, and the settlement was amicably made. After it was completed, they came into the room where she was, and said they had settled all their accounts, and that Mr. Kimball was to have all the property connected with their business in New-York. The testimony of James Hutchinson corroborates most of the above facts, and proves, in addition, an entry under date of December, 1822, in the account book of Kimball, by which he charged himself with the amount of the note. The declarations of the plaintiffs in relation to the terms of settlement were made at the conclusion of it, and not afterwards, as contended by the defendant, and tinder the circumstances were entirely competent; they had just completed the settlement, and these declarations were part of the res gesta, as much so in judgment of law as those made during the progress of the settlement. Besides, if we were to admit that the declarations of K. and K. were subsequent to the settlement, we can see no well founded objection to them, for the purpose offered. The object of the testimony is to prove a transfer of the note from one to the other, which would be binding between themselves or upon Kiniston, and the declarations of the latter would be good evidence against him for that purpose. I admit that these declarations would not be competent, if made after third persons became interested, as in the case of the defendant after the release to him; but if no such objection exists, the admission of the parties in relation to the transfer is competent, whether made at one time or another—after, or during the settlement. The testimony being admissible and pertinent, and fairly submitted to the jury, it seems to me we cannot disturb the verdict, as we are unable to say it is not warranted by the facts.

The notice of the transfer is abundantly proved. E. H. Kimball swears that he called on the defendant in behalf of his father for payment of the note, and was answered that it could not then be made, and was requested to ask his father to take the note to himself individually, and it would be soon paid; that in the fall of 1825 he informed the defendant that Iris father-had settled with Kiniston and taken the note to himself, and again in 1827; and that since 1825 the defendant had frequently promised to pay the note. If this testimony is to be believed, the assignment of the note to Kimball was in pursuance of a request from the defendant, and of which assignment he was duly advised.

The refusal of the agent who procured the release to relate the circumstances under which it was obtained, particularly in reference to that part of the transaction which tested the merits of it, was calculated to excite in the minds of the jury, and no doubt did, a suspicion unfavorable to the release, and gave color and strength to the view taken of it by the plaintiffs.

The letters of Kiniston to the defendant were clearly inadmissible. They were written after the assignment and notice; if no assignment was proved, then without the letters the defendant was entitled to the verdict, and if it was proved, they were incompetent to affect it. The only assignment relied on, or which the proof supported, or which was pretended, took place years before the date of these letters, and the subsequent declarations or confessions of the assignor were inadmissible to impair the rights of the assignee. The whole case turns upon the plea puis darrein and the issues growing out of it, which were questions of fact, and have been determined by the verdict. We are of opinion there is no error"of the judge in the numerous points of law raised during the progress of the trial.

New trial denied,