Meghan v. Mills

9 Johns. 64 | N.Y. Sup. Ct. | 1812

Per Curiam.

Here was not evidence sufficient to charge the defendant with notice of the assignment of the note to Leonard, at the time that he paid the amount of it to the plaintiff. It was not a negotiable note, and there was no other evidence of the assignment of it, than the endorsement of the plaintiff’s name in blank. This would be sufficient for negotiable paper, but as for specialties and other paper, not negotiable, it is not conclusive of itself, though it may be presumptive evidence, that the property in the paper has been passed. But it does not appear that Leonard had even shown this endorsement to the defendant, before the payment, or given him any notice that he was proprietor of the note. All that he had done, was to call upon the defendant for payment, and this might as well have been in the character of agent or servant to the plaintiff, as of owner. The presumption is, that the defendant considered Leonard in that light, for he said he was going to New-York, the next week, in the same steam boat, and would settle it - there. The settling of it there, would seem to refer to the plaintiff, as the person with whom he would settle, for the plaintiff lived there, and it does not appear where Leonard resided, but he was a steward on board of one of the steam boats.

The only additional fact from which to infer notice, was, that when the money was paid to the plaintiff in New-York, the note was still in the hands of Leonard. This payment was in November, and probably in the “ next week” above referred to, and under the above circumstances, it was not enough to ground the inference. There ought to be something equivalent to a direct and positive notice of the assignment of the instrument, before the defendant is to be charged with a fraudulent payment to the plaintiff^ for in no other point of view could the payment be questioned. If the plaintiff meant to give any thing more than a mere authority to Leonard, to receive the money, and had actually transferred to him his interest in the note, Leonard was guilty of great negligence, in not producing the note, and stating explicitly his interest, as owner, when he called upon the defendant for payment. The circumstances of the case are too loose and equivocal to justify the court in helping the laches of Leonard, by fixing the charge of fraud upon the defendant.

Motion for a new trial granted, with costs to abide the event of the suit.