26 Vt. 513 | Vt. | 1854
The opinion of the court was delivered by
The judgment of the county court in this case must be affirmed. The evidence offered by the defendant, as between these parties, was properly rejected. If this suit had been brought against the payee of the note, who was the plaintiff’s immediate indorser, the testimony possibly would have been admissible ; for as between them, the effect of the tender, whether made by him or Mr. Chapman as his assignee, would directly arise. The plaintiff’s interest in the note, as against the payee, was only to the extent of the money loaned or advanced, and a recovery would be limited to that amount. This suit, however, is not between these
The indorsement, in this case, was an order upon the defendant, and a direction to him, by the payee, to pay the amount of that note to the plaintiff; and as it was indorsed for money then paid or advanced, that indorsement was irrevocable. Chitty on Bills 268. It could not have been indorsed’for a less sum than was due on its face. Smith’s Mer. Law 274 Douglas v. Wilkinson, 6 Wend. 637. Chitty on Bills 262. Its legal effect, therefore, was to vest in the plaintiff the title to the note, and the right to recover the whole amount due thereon, as against the maker, and hold the surplus, after the payment of his claim, as trustee for the payee, or Mr. Chapman as his assignee. In the case of Bowman v. Wood, 15 Mass. 534, the note was received as collateral security for a debt which was in the plaintiff’s hands as sheriff. In that
We are satisfied from the authorities, that the title of the plaintiff to this note is sufficient to enable him to recover the amount of the maker, and that a payment to him will be a discharge of the maker’s liability to others. Under these circumstances, the fact that it was received as collateral security for money then ad-, vanced, does not alter his liability to pay the note to the plaintiff. The testimony, so far as the maker of the note is concerned is wholly immaterial, and was properly rejected. It is the duty of the maker of the note to pay it to the person legally entitled to receive it, and to whom the payee has ordered its contents to be paid; and leave the plaintiff and the payee, or Mr. Chapman as his assignee, to settle their conflicting claims between themselves.
Judgment affirmed.