37 Barb. 185 | N.Y. Sup. Ct. | 1862
By the Court,
The plaintiff derives his title to the notes upon" which the action is brought, from Asahel Gooding, his assignor. The allegation in the complaint, in each count or statement of a cause of action, is that the note y # - mentioned in the count “ for value received has been duly-transferred to and is the property- of the plaintiff,” &c. The notes are all payable to. Asahel Gooding or bearer. The plaintiff sues as assignee óf Asahel Gooding. On the trial he produces the notes, and reads in evidence the general .assignment to himself, of Asahel Gooding, which is sufficient in terms to pass whatever interest or title the latter had in the' notes. This raises a strong presumption that he received the notes of Asahel Gooding, by and -through the assignment, which is to be taken as the fact, until overcome by clear evidence to the contrary. He should be required to prove, at least, how he come by the notes, and to show a title to them through some other source. It is the legitimate inference flowing from the position in which the plaintiff by his pleadings and evidence has placed himself, that he came in possession of the notes from Asahel Gooding, and through his assignment. Unless, therefore, Asahel Gooding could have maintained an action on the notes, against the defendant Sands, most clearly the plaintiff could not. He does not occupy the place of a bona fide assignee of Gooding, in such a sense as to exclude the equities between his assignor and the defendant Sands.
It seems to me perfectly clear, from the report of the referee, that Asahel Gooding would not have been permitted to recover, laying out of view the assignment. The notes Were signed by Sands as surety for the defendant Adams,, at the request of Asahel Gooding, to be placed in the hands of George Gooding as collateral security for his liabilities as indorser for Asahel, and under an agreement with Asahel that they should not be put in circulation, and not be held or used as surety to Asahel Gooding. Sands was therefore a mere accommodation surety for Adams, on these notes. It would be monstrous, under these circumstances, to allow Asahel to recover on them. Instead of that, he was bound to protect Sands, against the notes. If the action had been brought by George Gooding the case would have been different, and I am not able to see, under the facts reported, or upon the evidence, why he would not be able to recover.
My opinion therefore is that the judgment should be reversed, and a new trial granted, with costs to abide the event.
The order of reference should also be set aside.
Welles, K Darwin Smith and Johnson, Justices.]
