Muir v. Demaree

12 Wend. 468 | N.Y. Sup. Ct. | 1834

By the Court,

Savage, Ch. J.

The principal question in this case is, whether the note on which the action is brought was a valid instrument in the hands of Fitch & Hurd, after it was paid at the bank ? There can be no doubt of its validity in their hands before they affixed to it the name of their firm. Had they kept it until due, they might have maintained a suit upon it; it was their property. When they passed it to the bank, they became obligated to the bank, but they were not sureties for the makers, in the proper sense of the term. They were the original creditors, and could not be both debtors and creditors in the same transaction. Substantially they stood in the same relation to the bank as if they had been payees in the note, and had endorsed it to the bank. When they paid the note, such payment was a discharge of their liability to the bank, but not of the liability of the makers. They were remitted to their former rights, and as much entitled to recover upon the note as if it had never been in the bank. There is no similarity between this case and that of Warren v. Price, 3 Wendell, 399. Warren there was a surety as between the original parties in the concoction of the note ;. here Fitch & Hurd were not sureties but in substance the payees of the note, and had full right to transfer it to the plaintiff Whether the note was in fact transferred to the plaintiff, was fairly submitted to the jury, who found a verdict in his favor.

New trial denied.