90 N.Y. 303 | NY | 1882
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *305 Even if the contract between the defendant and Rosenbach Co. involved nothing more than promises by one to the other, the consideration was sufficient and the engagement of either must be enforced in favor of any one to whom it has been transferred, although at a discount exceeding the legal rate of interest. At the close of the evidence the plaintiff may well have assumed the fact to be as above suggested, and that this principle was to be applied. He asked *307 the court to direct a verdict in his favor, and the request should have been granted.
It was proven that the defendant was a leather dealer, and Rosenbach Co. dealers in hides. There had been for six or seven years, frequent transactions between them, in the course of which the defendant had purchased hides of Rosenbach Co., and paid therefor. Upon the occasion in question, Lauterbach, one of the firm, applied to the defendant "to accommodate him with a note so that he could raise money." If this request had been followed by compliance and nothing more, it is obvious that the plaintiff could not recover, — the note would have been a mere accommodation note, without consideration, and his title under the circumstances affecting it, no better than that of Rosenbach Co. But the defendant did not acquiesce. He refused to do it, and the negotiation resulted in an arrangement which was embodied in written instruments. One was the note in question. The other was a bill of sale signed by Rosenbach Co. They were exchanged between the parties. The note was dated November 20, 1878, and was for $2,820, payable in four months after date to the order of S. Rosenbach Co., at Long Island Bank, and purported to be for "value received." The contract is in form a bill of sale; it reads:
"C.H. CHATFIELD:
"Bought of S. Rosenbach Co., 400 salted selected hides at 8 1/4.
"Deliver. December 20, 1878.
"Received by note twenty-eight hundred and twenty.
"S. ROSENBACH CO."
The writing embodies a perfect contract, although until the hides were weighed and ready for delivery, the price could not be ascertained, and so the receipt is not in full, but for an amount stated. The price per pound is given, and the gross sum, when ascertained, might exceed, or fall below the amount of the note, which was doubtless given by estimation of the probable value of the hides, and not as the sum wanted by Rosenbach Co., for of that no mention is made. The first *308
clause is a plain bill of sale, and indicates as its consideration, the note now in suit. The testimony of the defendant shows that such was his understanding of the matter. He says, if the hides had been delivered, he should have paid the note. The sale and promise to deliver was not less a consideration than the actual delivery would have been. But applying his argument to the memorandum as part of the contract, the appellant contends that the note was made upon the "agreement of Rosenbach Co. to deliver the hides on December 20, or pay the note on that day." If this is so, it would not within the rule above stated, relieve the defendant. The condition was not to be performed until December 20, so that from November 27, to that time, it was a good and valid note, even in the payees' hands. The maker could not have reclaimed it. If it had matured before December 20, the payees could have enforced payment. As it was, they had the legal title and the power of disposition. It was negotiable by its terms, and was in fact sold for value and transferred to the plaintiff on the day it was given. A subsequent violation of the agreement on which it then stood would not vitiate the note, or subject it to a defense good only against one for which no consideration had been given. (Cameron
v. Chappell, 24 Wend. 94; Davis v. McCready,
There was no promise expressed, or to be implied on the part of Rosenbach Co. to pay the note, except in the event of a non-delivery of the hides, and this was a condition subsequent to the main contract, and independent of it. Moreover it appears that by legal proceedings commenced by this defendant on the 20th day of December, 1878, he did in fact obtain possession of the hides, and has since sold them and received the price therefor. His title has been confirmed by judgment. As no defense was established, there was no question for the jury, and it is not necessary to consider the objections raised by the appellant to the judge's charge.
The judgment should be affirmed.
All concur, except RAPALLO, J., absent.
Judgment affirmed. *309
