24 Wend. 240 | N.Y. Sup. Ct. | 1840
By the Court,
The judgment of the court below, I am of opinion, is correct. The letters of Nicolet of 2d, 22d and 25th April, amounted, in legal effect, to a virtual assignment of the notes in question to the defendants for a valuable consideration. That was obviously the understanding and intent of all parties concerned. In respect to Nicolet, it is too frequently and earnestly expressed in his correspondence to be mistaken for a moment. He had failed to fulfil his engagements with the defendants’ house, knew they were laboring under heavy advances by reason thereof, *at a period of great commercial embarrassment, and was [ *244 ] endeavouring, with commendable sensibility and zeal, to relieve them. The notes previously bought of Lansing, Munroe and King and endorsed by them, (several of which were then due, and protested,) were, at once, turned over for that purpose, with urgent directions to his agent to procure guaranties from the endorsers. These notes Nicolet supposed might be made available securities to the defendants ; he also knew the endorsers were within their reach. They were, doubtless, the best in his power to offer at the time.
It was said on the argument, that the agent was not directed to transfer the notes, eo nomine, but only the guaranties. This is a criticism upon words without regard to the substance of the transaction. The collateral securities would be valueless, unaccompanied with an interest in the notes; it is impossible to separate them and give any legal effect to the obvious design of the parties. If the notes were paid, on presentation, by the endorsers, the money was directed to be applied on account; if not, guaranties were to be procured and delivered over. The fund appropriated was the notes—they were assigned, if any thing.
If the above view be correct, then the death of Nicolet becomes unimportant in respect to the rights of the defendants, as it could in no manner affect their title, which became perfect by the transfer of the interest in the notes. Manual delivery at the time was not essential for this purpose.
Judgment affirmed.
