76 N.Y. 279 | NY | 1879
The action is upon a promissory note, dated June 21, 1875, purporting to be made by the defendants, *281 Emil Ruger, William Ruger and Richard Garry, under the name of Ruger Bros. Co., payable to the order of Isaac Taylor, four months after date. The plaintiffs claim as Taylor's indorsees. The makers and indorsees were all sued. The makers alone defended. They admitted by their answer the execution of the note, but denied that Taylor had indorsed it, and set up as an affirmative defense that the note was not made for value, but was fraudulently obtained from them by Taylor; that the plaintiffs were not holders for value, and had no property in the note.
Upon the trial the plaintiffs called as a witness their book-keeper, one Goodale, and proved by him that the indorsement upon the note was in the handwriting of Taylor, the payee. He was then cross-examined by the defendant's counsel, and testified that he was not present when the indorsement was made, and could not say positively when he first saw the note, "but should say from a month to six weeks before its maturity;" that he received it from Lambert Hitchcock, by the hand of F.N. Lambert, the senior partner, and it then had on it the indorsement of Taylor; that it was not indorsed by Lambert Hitchcock; and that he gave them nothing back when he received the note. And then being examined on the subject by plaintiff's counsel, was asked this question: "You stated that at the particular moment when the note in suit was handed to you, you gave nothing back; did you, for that note, surrender anything, and if so, what?" The witness replied: "I did surrender two notes of Isaac Taylor for $1,500 each, that were protested, and I surrendered them for this note of Ruger Brothers." He could not state the date, but says "it was within a short time after we received the note of Mr. Ruger;" that "each $1,500 note was indorsed by Lambert Hitchcock; we received them, discounted them, and they became due and were protested; there was then due upon them a little less than $3,200." The defendants proved, by the further cross-examination of this witness, that Lambert Hitchcock had paid the plaintiffs upon the note in suit $1,740.60. *282
The plaintiffs then rested, and William Ruger, one of the defendants, was sworn as a witness for himself and co-defendants, and testified that the note was executed in New York and sent by the makers to Isaac Taylor. He was then asked, "Did you receive any consideration for it?" and answered, "No, sir." The plaintiff's counsel then moved to strike out the last answer and objected to the testimony as immaterial. The motion was granted and objection sustained. He was then asked to state all the facts connected with the making of the note and sending it to Mr. Taylor. This was objected to as immaterial and the objection sustained. The counsel for the defendants then said, "I offer to prove that this note was sent to Taylor to take up another note which was given him as collateral security for the payment of some debts, and that he didn't take up that note at all." This was "objected to by plaintiffs as immaterial, also that defendants had not laid any foundation for the evidence by showing that plaintiffs were not innocent holders for value;" the objection was sustained and defendants excepted.
We think the exception was well taken. At the close of the plaintiffs' case they had, by the admission in the answer, proof of Taylor's indorsement and production of the note, established aprima facie case, and, for the time being, their own title and right to recover, and the defendants' liability. But if the facts offered in evidence by the defendants had been proved, the latter would have established, not merely that the note was without consideration and made for the accommodation of Taylor, but that it was fraudulently put in circulation and diverted from the use intended. It would then have been necessary for the plaintiffs to prove, if they could, that they were bona fide holders of the note for value or fail in the action. (Farmers and Citizens'Bank v. Noxon,
As the case stood, there was no question for the jury and the court did not err in directing a verdict for the plaintiffs, but if the facts stated in defendants' offer had been proved, it would have been the clear duty of the court to submit *284 the question to the jury in order that they might determine whether the note was diverted, as the defendants alleged, and if so, to what extent the plaintiffs had paid value for it. For only to that extent could the plaintiffs recover, and not for that even, if the defendants could affect them with notice.
For the error above considered the judgment should be reversed and a new trial granted, costs to abide event.
All concur, except FOLGER and EARL, JJ., dissenting.
Judgment reversed.