Lee v. Swift

1 Denio 565 | Court for the Trial of Impeachments and Correction of Errors | 1845

By the Court, Jewett, J.

Taking the note and the receipt together, and connecting them with the facts and circumstances proved, there is ground for a conjecture that the note was, as between Swift and Lee marie by the former for the. accommodation of the latter, to be then delivered to Chamberlain as his property to secure him the payment of $500, then understood by all the parties to be due from Lee to him : and which amount Lee was under some obligation to secure in that mode. It is insisted by the counsel for the defendant, that as between Lee and Swift, the note being accommodation paper, never had any legal existence; and'not being negotiable by its terms, Chamberlain could not recover upon it in the name of Lee without proving himself a bona fide assignee of the note and for valuable consideration: that the defendant having proved that the note was made for the accommodation of Lee and without consideration as between them, the burden of proving value paid to Lee by Chamberlain lay with the latter.

The late Ch. Justiée Nelson, in Rogers v. Morton, (12 Wend. 484,) observes: “A promissory note imports a valuable consideration upon its face, and possession is presumptive evidence of property rightfully acquired; but when the maker shows that it was obtained from him and put into circulation by force or fraud, all the above intendments of law are rebutted, and proof becomes necessary.” But this principle does not appear materially to aid the defendant. He has however shewn that he made the note for the accommodation of Lee, the payee, which cast the burden upon Chamberlain, who claims the beneficial interest, of shewing that he acquired it rightfully and for valuable consideration. To maintain that position, he proved that at the date of the note and receipt, he was in company with the maker and payee near the store of Gay at Waterloo; that the maker and payee went into the store, made the note and- left it with Gay, with directions to hand it to him, Chamberlain ; that soon after, on the same .day, Chamberlain went into the store and Gay handed him the note. These facts, although they furnish strong ground to presume, were not sufficient to authorize the jury to find that there was a valuable consideration from Chamberlain to Lee for the note. That it was made by the defendant, at the instance of Lee, for the purpose of being transferred to Chamberlain, upon some unexplained consideration, is rendered highly probable. If that consideration was a debt due from Lee to Chamberlain, or money or other thing advanced by the latter to the former, Chamberlain, on proof of these facts, would be entitled to recover in the name of Lee; but in the absence of such proof, it does not appear but that the prosecution is for the benefit of Lee, the payee, who it is conceded has no right to recover on his own account.

The evidence does not warrant any imputation of a design to defraud the defendant. He knew, the object and purpose intended to be accomplished by the note, and took an indemnity from the payee to save him harmless by reason of it; on which he relied as his security. But the difficulty remains that there is no proof of value paid by Chamberlain to Lee as a consideration for the transfer to him.

New trial granted.