33 N.J. Eq. 451 | New York Court of Chancery | 1881
The object of this suit is to protect the complainant against a judgment at law, recovered against him and his brother, Cornelius C. Westervelt, by Theodore W. Freeh and Arthur A. Ten
The defendants insist that the fact that the complainant was a mere surety for his brother was not known to Freeh, who trans- • acted the entire business for his firm in taking the original note, recovering the judgment thereon, accepting the check and note given on the 10th of December (the receipt therefor was signed by him), and the rest of the business in connection with the claim. Freeh says that the paper which Cornelius was to obtain and send to him to be discounted, was to be endorsed by the complainant; but, instead thereof, he received a note made by the complainant and endorsed by Cornelius. He does not say he supposed, or had any reason to think, that the note was not mere accommodation paper. The origin of the note was this: Cornelius owed the firm of T. W. Freeh & Co. between $600 and $700 on a note given by him to them. Freeh called on him for the money, but he could not pay it. In the course of the conversation which then took place between them, Cornelius asked him if he could obtain a loan for him; to which Freeh replied that if Cornelius “ would make good paper,” he would try; and he says that Cornelius then said he would give him a note endorsed by P. Van Allen Westervelt, of Paterson. The note given to Freeh to be discounted was, as before stated, made by the complainant and endorsed by Cornelius. Both Cornelius
“He [Cornelius] asked me if I could not engineer a loan through, for .him; I told him if he made good paper, I would try; he said he was very short just then and would like to use §2,500 or §3,000; I told him if he would make me a good note for §2,500 or §3,000, and allow me to deduct my bill, I would discount the note for him myself; he said he would give me a note endorsed by P. Van Allen Westervelt, of Paterson; as to the responsibility of P. Van Allen Westervelt, he referred me to Mr. Hogencamp, of the Second National Bank of Jersey City, who lived close by him; and I told him if Mr. Hogencamp said the note was good, and he would allow me to deduct my bill, I would give him the money; he brought the note to me; I did not know P. Van Allen Westervelt’s signature; instead of his bringing a note endorsed by P. Van Allen Westervelt, he brought me P. Van Allen Westervelt’s note; I Sent our bookkeeper to Jersey City with the note to show to Mr. Hogencamp; I took his note, and that is the note on which this suit [the suit in which the judgment was recovered] was brought.”
Cornelius swears that wbat he said to Freeh was that he thought he could borrow some good paper; that Freeh asked