Skillen v. Richmond, 48 Barb. 428

Skillen v. Richmond

48 Barb. 428 | N.Y. Sup. Ct. | 1867

Lead Opinion

Leonard, P. J.

The action is for the recovery of a sum of money mentioned in a written instrument drawn in the usual form of a promissory note, in every respect, except the following clause, viz. “ payable out of and from my separate property. and estate, with interest payable quarterly.”

The defendant, Richmond, is the drawer, and Van Doren is the payee "and indorser. The defendant Van Doren being upon the stand as a witness in his own behalf, was asked what consideration was paid to or received by him for his indorsement. The question was excluded on the plaintiff's objection, and the counsel for the. defendant excepted. The defenses s.et up are a cotemporaneous agreement to extend the time of payment for six months ; and, secondly, that the note was obtained by false representations affecting the value of the property for which it was given; and that Van Doren indorsed the note without any consideration. Also, that the action is prosecuted for the benefit of Thomas Aitken, who made the alleged false representations, and who is alleged to be the real party in interest.

If the instrument upon which the action is brought, is to be considered a promissory note, the defendant was required to lay the foundation for inquiring into the consideration, by *436first proving that" the plaintiff was not a bona fide holder, • which had not heen done when the question was pút. If, on the contrary, as the defendant insists, the instrument was not a promissory note, no such condition could be imposed at the trial, and the question should have been admitted. A promissory note or bill, to come within the rules for the protection of the holders of mercantile paper, must be payable ¡absolutely at sdme period, not depending upon a contingency, nor payable out of a particular fund.

I am not able to discover that this instrument is affected by any objection arising from these rules.' The principal is payable in twelve months, and the interest quarterly. If the interest is not paid according to the promise, it all becomes due at the end of twelve months. It is “ payable out of and from my separate property and' estate;” but the separate property of Mrs. Richmond is' not a particular fund. Individual promises are always payable from the separate estate of-the maker. The expression of this fact does not- state a, particular fund; This ground of exception to the ruling does not appear to have been brought to the attention of the judge at the trial. It does not appear to have been then disputed that the instrument was a promissory note. ' If Adeline A. Richmond'was a married woman at the timé of making the note, the meaning of the words “ my separate property and estate,” would be quite intelligible ; but such fact does not appear from the evidence, unless it be inferred from her being spoken of during the trial as “ Mrs. Richmond.” I do not think the explanation is necessary, as the words relied on do not refer to a particular fund, but to the whole estate of the maker.

The counsel for the defendant submitted to the ruling, without making any claim that the instrument was not a promissory note, and proceeded to give evidence affecting the title of the plaintiff to the note, as a bona fide holder for value.

-The judge! before whom the action was tried without a jury *437has found that the note was indorsed and delivered to the plaintiff before maturity, for value received. The counsel for the defendant insists that the evidence does not sutain this fact as found, and that the judge should have admitted the evidence offered of an agreement to extend the time of payment. The offer to prove the consideration paid to or received by the defendant Yan Doren for his indorsement, was not renewed. The evidence showed that the plaintiff paid $100 in cash and his check for $2400 to Thomas Aitken about a week before the maturity of the note, which Aitken paid over to his wife, to whom it belonged. The only fact supposed to impair the effect of this evidence is, that Thomas Aitken, the witness called for the defense to prove the want of bona fides in the plaintiff's title, says that he does not recollect whether the check has been paid; that he delivered it to Mrs. Aitken, and he supposes it has been paid. Certainly, this evidence will not warrant any finding against the bona fides of the plaintiff's title to the note ; so far as the evidence proves any thing, it is in favor of the plaintiff on that question.

Whether the instrument is subject to the rules of law governing mercantile paper or not, the evidence offered to show a contemporaneous agreement with the making or indorsement of the note, to extend the time of payment, was not admissible. .Neither a promissory note, nor any other agreement in writing, can be varied or impaired by parol evidence. None of the objections urged by the defendants are sufficient to affect the regularity of the trial.

The judgment should be affirmed, with costs.

Ingraham, J. concurred.

Dissenting Opinion

Sutherland, J. (dissenting.)

I feel compelled to dissent from the conclusion brothers Leonard and Ingraham have come to, in this case. I think the instrument declared on was not on its face a promissory note; and if so, certain evidence offered by the defendants was improperly rejected.

*438[New York General Term, April 1, 1867.

It appeared, from the agreement executed at the same time the note was executed, and which provided for its execution, (which agreement was introduced by the plaintiff and re-' ceived in evidence, under objection by the defendants,) that Adeline A. Eichmond was a married woman when the note was executed ; and I think; this is rather the inference from the face of the note. And if she was, I do not see how a personal judgment could be obtained against her on the facts stated in the complaint or proved at the trial.

I think the judgment should be reversed, and a new trial ordered.

Judgment affirmed.

Leonard, Sutherland and Lngrahmn, Justices,]