Moore v. Viele

4 Wend. 420 | N.Y. Sup. Ct. | 1830

By the Court,

Marcy, J.

This case in all its essential features resembles that of Depuy v. Swart, (3 Wendell, 135.) The negotiability of the note on which the suit is brought, was destroyed by the discharge of the maker under the insolvent act, and its subsequent transfer did not give to the person receiving it a right to maintain an action directly on it.

There is, however, another feature in this case which does not seem to have received as much notice as it appears to me to have deserved. The payee of the note was the only witness by whose testimony the action was sustained. He transferred the note after the statute of limitations had attached, and after the maker had been discharged. The consideration fo.r the transfer was the note of the plaintiff below to be given at a future day, and not in fact given when the suit between the present parties was commenced. Furthermore there was an agreement at the time of the transfer, that the payee should be the witness for the plaintiff below to prove the new promise. The transaction is suspicious, and the jury would have been warranted in believing that it was a contrivance to convert a party into a witness. I will not say that the understanding between the purchaser and payee of the note that the latter should be a witness to establish its validity, rendered him an incompetent witness after the release, or that it was sufficient entirely to overthrow his credit; but the court below I think went too far in instructing the jury that it did not affect or impair his credit. It should have been presented as a fact having a strong tendency to impeach his credibility.

I have some doubt whether the promise proved in this case is available to the plaintiff below; it was not made to him or to his agent. To do away the effect of a discharge under an insolvent law, there must be an express promise to pay, This promise need not be made directly to the plaintiff. If made to his agent it is good ; or if made to a third person it may be good, but in the latter case I think it should be a promise to pay the plaintiff. It is not in proof in this case that the promise was, that the defendant below would pay Yiele, the plaintiff. Blood was the original holder of the note, and it does not appear that when Moore made the promise subsequent to his discharge, he conversed with Blood in any other character than as holder of the note. I consider that the promise to pay was made directly to him. I am not willing to say that a promise to pay Blood will sustain the action by Yiele.

Judgment of common pleas reversed.