38 N.Y.S. 1100 | N.Y. App. Div. | 1896
The defendant was sued as the maker of a promissory note, dated at Patchogue, N. Y., November 4, 1889, whereby she promised to pay to William Roe or order, on demand, the sum of $1,060, with interest at six per cent. No question was raised as to the genuineness of this note. The defendant averred, however, that she received no consideration therefor and that she had been induced to sign it in ignorance of its amount and purport, upon the representation of the plaintiff, who conducted the transaction in which the note ■was given, that it was necessary to straighten up some business transaction between them. She also alleged that subsequently, when she ascertained the true import of the note, the plaintiff represented to her that it was for money previously loaned by William Roe, the payee named therein, to Stephen Jennings, a brother of the defendant, now dead, but the defendant denied that any such sum of money was ever so loaned to him.
The question whether there was any consideration for the note in suit was the only issue litigated on the trial, and that issue was narrowed by the assertion of the plaintiff in her testimony that the note was in fact given to replace a previous note, which she surrendered to the defendant at the time. This prior note, according to the plaintiff, was a joint note to William Roe for $1,000, executed by the defendant, Adaline Nichols, and her brother, Stephen Jennings. The brother having died, the plaintiff, who acted for her husband, William Roe, in the matter, says she asked the defendant for a new note, whereupon the note in suit for $1,000 principal, and $60 added for interest, 'was drawn up and signed, and the defendant destroyed the old one by putting it in the kitchen stove. Mrs. Nichols, on the other hand, testified that she never made any such joint note, and denied that Mrs. Roe surrendered any paper to her when the note in suit ivas signed.
In this conflict of proof, the determination of the case depended upon the view which the jury should take as to the existence or non-existence of the joint note described by the plaintiff. On this question, under instructions to which no exception was taken, the jury found in the plaintiff’s favor. We are asked to reverse the judgment entered on their verdict, because of two alleged errors in the exclusion of evidence.
An inquiry was also attempted into the habits of Stephen Jennings, for the purpose of showing that they were simple and inexpensive, as bearing upon the probability of his having borrowed so large a sum as $1,000. Judge Wilmot M. Smith, who had been the executor of the estate of the father of Stephen Jennings, was a^ked whether the latter was a spendthrift or anything of that kind. The court sustained the plaintiffs objection to this question. The ruling was correct. General proof as to a man’s habits.in regard to the use of money is not relevant upon the question whether he made a particular promissory note or not. It deals with probabilities or possibilities too remote from the issue.
Finally, upon the point that the verdict was contrary to the evidence, it is only necessary to say that tliei’e is no such preponder
The judgment and order appealed from must he affirmed, with costs.
All concurred, except Cullen, J., not sitting.
Judgment and order affirmed, with costs.