McKinster v. Bank of Utica

9 Wend. 46 | N.Y. Sup. Ct. | 1832

By the Court,

Sutherland, J.

The question whether the note was or was not left with the bank, and received by them for collection, was distinctly and fairly submitted by the judge to the jury, and they have found that it was. The evidence upon this point was contradictory, and the verdict of the jury must be held conclusive.

It was admitted that no notice had ever been given by the defendants to the endorsers. That it is the duty of a bank with whom negotiable paper is left for collection, to take the necessary measures to charge the endorsers, upon default of the maker, and that they are responsible to the owner of the note for a neglect or omission to perform such duty, is fully established by the case of Smedes v. The Bank of Utica, 20 Johns. R. 372, and the same case in error, 3 Cowen, 663. That was an action of assumpsit, charging the omission of the defendant to give notice to the endorsers as a violation of an implied contract. Here it is charged as a breach of duty; either form of action may be maintained. Govell v. Radnige and others, 3 East, 62, and particularly Lord Ellenborough’s opinion, 69, 70. Dickson v. Clifton, 2 Wilson, 319. 1 Chit. Plead. 134, 5, tit. Action on the case.

The principal, not the only question in this case, is whether the action is properly brought in the name of the present plaintiff. The note in question bore date the 2d day of October, 1827, and was payable seven months after date, to wit, the 5th of May, 1828. It appeared from the testimony of William J. Pardee that the plaintiff being indebted to him in the sum of $1500, after the note was made, and before it was payable, turned out this and another note for $300, in part payment of said debt. That the agreement was, that if the notes were paid, the amount was to be applied by the witness to his debt; but if not paid, the plaintiff was still to be responsible. The witness stated in express terms that he did not consider himself the owner of this note ; but he had the control of it, and the money would have been his if the note had been paid. The plaintiff paid the witness the amount of this note after it was received back from the bank, and the witness then returned the note to the plaintiff. The witness left the note at the bank, and the plaintiff never had any intercourse with the bank in relation to it. Under these circumstances the defendants contend that their contract, whatever it was, was made with Pardee, and that the action should have been brought in his name, and not in the name of McKinster. If the action had been assumpsit, it might have been necessary to have stated the arrangement with the bank and the agency of Pardee in the transaction with more particularity than is done in this declaration. But even assumpsit might have been maintained in the name of Mc-Kinster, upon the evidence of Pardee. McKinster was the only person legally interested in having the endorsers duly charged ; he was absolutely bound to pay the amount of this note to Pardee, if the note itself was not paid at maturity. The property of the note was not vested in Pardee; he held it as collateral security only, to be returned if not paid. The undertaking of the defendants to give notice to the endorsors of the non-payment of the note by the maker, was for the benefit of the plaintiff. The legal interest in such contract was in him alone, and even an action of assumpsit not only might, but should have been brought in his name. 1 Chit. Plead. 3, 4, 5, and cases there cited. His right to maintain the action in its present form is still more clear. The injury has fallen upon him, and he is entitled to the redress which the law affords. 1 Chit. Pleadings, 135.

But this suit is in fact brought for the benefit of Asa Fuller and others, to whom this note, with whatever claim the plaintiff had against the defendants in relation to it, was assigned by the plaintiff, on the 1st October, 1828. Another note for §300 was also signed at the same time, and the debts for the security of which they were assigned, exceeded §1400 $ so that if this assignment was valid, of which there is no questjon? ^he plaintiff had no interest in this note remaining in himself; and of course none passed by his assignment under ^ insolvent act made on the 30th December, 1828; and the point raised by the defendants, that those assignees should have been a party to this suit, is disposed of. Although the plaintiff’s interest in this cause of action passed by the assignment of the 1st of October, 1828, to Asa Fuller and others, the suit was properly, and of necessity, bi’ought in his name.

The insolvency of Dann, the maker of the note, was suffi- ■ ciently proved, independently of the judgment and execution and return, which were objected to by the defendants. If improperly admitted, therefore, it would not, upon a case, be a sufficient ground for a new trial.

On the whole, I am of opinion that the motion for a new trial ought to be denied.