This аction is brought upon a promissory note for $345.62, made by the defendants Avery to .the order of the defendаnt Acme Metal Novelty Works, indorsed by said payeе and by the defendant Booth, and now owned by plaintiff. ' The defendants, Acme Metal Novelty Works and Ralph W. Booth, Sr., make no defense, and the defendants Avery admit their liability on the said note, but claim by way of counterclaim and offset $105 on a note made by said Acmе Metal Novelty Works to the order of said defendants Avery. The justice gave judgment for plaintiff for the differеnce between the two notes. Plaintiff appeals.
There would be no question as to the right of the dеfendants Avery to set up this note for $105 as an offset, if the note for $345.62 had remained in the hands of the Acme Mеtal Novelty Works, and the said defendants Avery claim
Thе treasurer of the Acme Metal ¡Novelty Works testified that the note was sold before maturity to the defendant ¡Booth for its face value less the legal disсount.' The witness Ralph W. Booth, Jr., testified that he got the note before maturity from the Acme Metal ¡Novelty Wоrks and paid therefor the face value of the note, less six per cent, discount; that he got his father, Ralph W. Booth, Sr., to indorse the note, and then sold it bеfore maturity to the plaintiff for the face valuе of the note. The plaintiff swore that he paid full value for the note, before maturity, to said Booth. To all this evidence there is no contradiction whatever on the part of the defendants. The only witnеss for defendants was Ledyard Avery who merely testified as to the making and delivery of the $105 note by the Acme Mеtal Novelty Works to his firm. It, therefore, appeаrs from the undisputed evidence that plaintiff was a bona fide рurchaser for value and before maturity of the sаid note. It was error, under these circumstances, tо allow the $105 note, made by the Acme Metal ¡Novelty Works in favor of defendants Avery, as an offset to thе note in suit.
As it definitely appears that defendants cannot contest their liability on the said note for $345.62, and a new trial is wholly unnecessary, the judgment in favor of the plaintiff should be modified by increasing the amount to $345.62 with interest and costs, and as thus modified affirmed, with costs.
Freedman, P. J., and Bischoff, J., concur.
■ Judgment modified by increasing amount to- $345.62 with interest and costs, and as modified affirmed, with costs.