Owens v. Blackburn

146 N.Y.S. 966 | N.Y. App. Div. | 1914

Laughlin, J.:

The plaintiff’s first cause of action is on an instrument in writing which is set forth in the complaint as follows, viz.:

“$4192.50 Zanesville, Ohio, February 12, 1907.

“Four months after date we or either of us promise to pay to the Old Citizens’ National Bank of Zanesville, Ohio, Four thousand one hundred ninety-two and 50/100 Dollars, value received, payable at said Bank with interest at 6 per cent per annum.

“No. 17319. Due June 12. J. E. BLACKBURN

“ ELMER DOVER

“ J. B. OWENS.”

The note not being payable to bearer or order is non-negotiable (Neg. Inst. Law [G-en. Laws, chap. 50; Laws of 1897, chap. 612], § 20; now Neg. Inst, Law [Consol, Laws, chap. 38; Laws of 1909, chap. 43], § 20; Kerr v. Smith, No. 1, 156 App. Div. 807; National Citizens’ Bank v. Toplitz, 178 N. Y. 464), and there would, therefore, he no presumption of consideration; but the recital “value received ” in the body of the note constitutes an admission that the instrument was issued for a sufficient consideration. (Hamilton v. Hamilton, 127 App. Div. 871; Prindle v. Caruthers, 15 N. Y. 425; cited with approval in National Citizens’ Bank v. Toplitz, 178 id. 464.) The cases of Browning, King & Co. v. Terwilliger (144 App. Div. 516) and Czerney v. Haas (Id. 430) and St. Lawrence County Nat. Bank v. Watkins (76 Misc. Rep, 633), which has been reversed (153 App. Div. 551), and Kinsella v. Lockwood (79 Misc. Rep. 619), upon which counsel for respondent relies, are plainly distinguishable, on the ground that in those cases the non-negotiable instrument was not pleaded in hœc verba and the courts were considering allegations to the effect that an instrument or promise was made for a valuable consideration which were deemed in the nature of conclusions of law and not sufficient allegations of the facts; but, manifestly, those authorities have no bearing in a case where the pleading sets forth the instrument which recites an acknowledgment of the receipt of consideration. The promise is both joint and several. All of the makers and each of them, therefore, has admitted the receipt of consideration for the promise. The plaintiff is one of the makers and the defendants are the other two.

The plaintiff alleges that he was compelled to pay the note and that he paid it in full with interest, and that he has demanded that each of the defendants contribute to him one-third of the amount paid. There is no merit in the contention that the plaintiff should have alleged that neither of the defendants paid the note. That is fairly to be implied from the allegation that he was compelled to pay it. The three makers were hable to the payee both jointly and severally, but presumptively as between themselves their liability was joint and equity requires that they hear the burden equally and that those who have not paid shall contribute to the plaintiff who has been obliged to pay the entire amount for which all three makers were liable. (Aspinwall v. Sacchi, 57 N. Y. 331; Hard v. Mingle, 141 App. Div. 170; affd., 206 N. Y. 179; Dillenbeck v. Dygert, 97 id. 303; McCready v. Van Antwerp, 24 Hun, 322; Kimball v. Williams, 51 App. Div. 616.) It was not incumbent on the plaintiff, in the circumstances, to allege an agreement for contribution, for that is an obligation implied and enforced by courts of equity. (Aspinwall v. Sacchi, supra; Van Demark v. Van Demark, 13 How. Pr. 372; Hard v. Mingle, supra; McCready v. Van Antwerp, supra.)

It follows that the interlocutory judgment should be reversed and the demurrer overruled, -with costs, with leave to respondent to withdraw the demurrer and answer on payment of costs of the demurrer and of the appeal.

Ingraham, P. J., McLaughlin, Scott and Hotchkiss, JJ., concurred.

Judgment reversed, with costs, and demurrer overruled, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs.