2 Lans. 477 | N.Y. Sup. Ct. | 1870
By the Court
This was an action against the defendant as maker of a promissory note. The plaintiff had testified that he purchased the note for value and before maturity. The defendant offered to prove in defence, that he was unable to read, and that when he signed the note it was represented to him, and he believed, that it was a certain other contract, offered to be also produced in evidence, and which purported to be a contract inter jo artes of an entirely different character. The offer was overruled and the defendant excepted, and now moves for a new trial. We think the
The familiar case of a note declared void by statute, as in the case of usury, furnishes an illustration. During the period when, according to the statute law of this State, a bona fide holder for value, and before maturity, was protected against even the defence of usury, the statute against usury was practically almost abrogated as to negotiable paper.
The precise question presented here, as applied to commercial paper in the hands of a bona fide holder, &c., has, so far as we have been able to discover, been presented in but one case, and that, a very recent one, viz.: The case of Foster v. McKinnon, decided in the English Common Pleas, in July, 1869, and reported in 38 Law Journal Reports, new series, page 310, which case was very fully argued, and care fully considered by the court, upon examination of all author!
Under these circumstances, the lord chief justice, who tried the cause, left it to the jury to say, whether the signature was obtained on a fraudulent representation, that the paper to which it was put was a guarantee, and instructed the jury that if it was so obtained, and the defendant "signed it, not knowing it was a bill, and under the belief that it was a guarantee, and if he was not guilty of any negligence in writing his name on the bill, without ascertaining what he was signing, he would be entitled to their verdict. This instruction was sustained by the whole court, in an elaborate opinion delivered by Byles, J. We are satisfied with the reasoning of the court in that case, and wo think any other rule -would be fraught with great danger to the security of property. If, as to a party who can give evidence, that he purchased the bill for value, and before maturity, and as to whom the defendant is unable to bring home notice, the question of liability is reduced to a mere question of the genuineness of the signature, we do not see how a party would be able to escape liability, as suggested by the court in the case referred to, where he had written his name in a lady’s album, or for the purpose of franking a letter, or for any one of the thousand purposes for which a man is often called upon to furnish a signature, without the intention of making a negotiable instrument. The true distinction was tersely stated by
A new trial must be granted, costs to abide the event.
Mullin, P. J., read an opinion to same effect.
Ordered accordingly. .