PROMISSORY NOTE. ENDORSE- | constituted by the plaintiffs. They then sent it to the defendant, who en

MENT.

N. Y. SUPREME COURT, GEN. TERM, dorsed his name upon it, and returned FIRST DEPARTMENT.

George M. Weld, et al., respts., v. Henry E. Bowns, applt.

Decided April, 1876.

it to the messenger, and he gave it to the plaintiffs. They credited the twenty per cent. to be allowed for the endorse ment in the defendant's account, and he had the benefit of it in their settlement.

When the note came due it was pro

An endorser will become liable upon his endorsement to the payee of the paper when he has made himself such for the purpose of securing tested for non-payment, and notice of credit for the makers. its dishonor given to the defendant.

The payee upon a note may show by parol evidence that the party endors. The plaintiffs and payees had previousing commercial paper as its second ly endorsed the note, and turned same endorser, had really bound himself over to their bank for discount, but and designed to become the first en- same came back into their hands, and dorser. this suit was commenced. Persons endorsing commercial paper should be held liable to those appearing to be prior parties upon it, when they are shown to have agreed to assume that relation, and the ugreement was made upon a sufficient

consideration.

Appeal from a judgment recovered upon a referee's report in favor of plain

tiff.

Treadwell Cleveland for respt.
Wm. W. Mann for applt.

Held, That without the existence of the agreement made for the defendant's endorsement, he would stand as the second endorser on the note, and for that reason not liable to the plaintiffs, to whose order it was payable, and who by their endorsement of it became osBacon v.

The facts found by the referee are substantially as follows: That the tensibly its first endorsers. plaintiffs were dealers in coal, and in Burnham, 37 N. Y., 614. That an November, 1869, had been applied to endorser of a note becomes liable upon by George Woodward to sell him a his endorsement to the payee of the cargo of coal. That they were unwil- paper, when he has made himself such ling to do so upon his own credit, and it for the purpose of securing credit from was finally agreed between the defend him for the maker. It does not appear ant and the plaintiffs that they should to be essential to the existence of the sell Woodward the coal, and that the liability that it shall be assumed at the defendant would endorse and guarantee instance of the maker. The important his note for the purchase price for elements on which it rests is the fact twenty cents a ton. In compliance that by means of the agreement and with that agreement, they sold and de- the endorsement the payee has been inlivered the coal to Woodward, and re-duced to sell and deliver his property ceived from him his promissory note to the maker. When that benefit has for the purchase price, being the sum been in that manner secured, the agreeof $693.50. The note was made payment will be founded upon a sufficient able to the order of Weld, Nagle & consideration to change the apparent Co., which was the name of the firm relation of the parties to the paper, and

dorser upon it.

render the second liable as the first en- whom reside in Philadelphia, but M. H. C. Place, acting under the instructions of defendant Justice, appeared and interposed an answer in their behalf.

The defendants, Hagy & Knowles, until the latter part of November, 1875, when they learned that they were par

ence had been entered on the trial of the case, had proceeded until nearly the whole of plaintiff's proof had been introduced.

The authorities establish the right of the payee to show by parol evidence that the party endorsing commercial paper as the second endorser, had really bound himself and designed to become the first endorser. The later authori- ties to this suit, that an order of referties in this state maintain the principle that persons endorsing commercial paper should be held liable to those appearing to be prior parties upon it, when they are shown to have agreed to On December 1st, 1874, an order was assume that relation, and the agreement entered substituting Mr. A. C. Thomas, was made upon a sufficient considera- instead of Mr. Place, who made the tion to render it obligatory. Coulter v. motion to cancel the appearance for deRichmond, 59 N. Y., 478; Hubbard v. fendants, Hagy & Knowles, from Matthews, 54 N. Y., 43; Phelps v. the denial of which motion this appeal Vischer, 50 N. Y., 69. Judgment affirmed.

was taken.

It was urged on the appeal that one

Opinion by Daniels, J.; Davis, P. partner had no right unless specifically J., and Brady, J., concurring.

ATTORNEY. APPEARANCE.

N. Y. SUPREME COURT-GENERAL TERM,
FIRST DEPARTMENT.

authorized by his copartner to authorize an attorney to appear for his copartners.

Held, That the objection that the appearance for Hagy & Knowles by the first attorney was unauthorized is a James H. Lyles, et al., v. John M. valid objection. Edwards v. Carter, 1 Hagy, et al. Strange, 473; Phelps v. Brewer, 9 Cush., 390; 47 How., 470; 8 Paige 176. But held that it is unnecessary to dis

Appeal from order made at Special Term, denying motion to cancel the ap. pearance of the defendants, Hagy &

Decided March 31, 1876. One partner has no right, unless specifically authorized, to retain an attor-pose of that question, as an attorney was ney to appear in an action for his afterwards substituted who was authorcopartners in a suit brought against all the copartners. ized directly by the defendants, Hagy & Knowles, to appear, and it would seem inequitable to have them relieved entirely from their appearance, they being now without the jurisdiction of the This action was commenced by the court, and the second appearance being service of a summons on the defendant authorized and regular. But they Justice, in June, 1874, to recover dama should not be concluded by the proges for breach of a contract, alleged t ceedings taken without their consent or have been made in April, 1874, by de- knowledge. The order made should fendants, who, it appears, were copart-therefore be modified so far as to allow

Knowles.

ners in this business.

them to serve their answers to the com

No summons was ever served on the plaint of the plaintiff within twenty defendants, Hagy & Knowles, both of days after notice of the entry of the

order to be entered on the decision of fact which invoked the use of the terms and conditions was false, and was stricken out, they necessarily became irrele

this appeal, and the order of reference should be wholly vacated without costs of appeal to either party.

Opinion by Daniels, J.; Davis, P. J., concurring.

Appeal from an order striking out an affirmative defence as sham.

This action is brought upon a policy of life insurance, issued by defendant, in favor of plaintiff, upon her husband's life, he having heretofore died. The answer, among other things, alleged upon information and belief that the insured had, since the issuing of the policy, become an inebriate and died in consequence of intemperance; and that in consequence, in accordance with its terms and conditions the said policy became and was void before the in

sured's decease. Plaintiff moved to

vant.

The alleged intemperance was based upon information and belief, and was the avowal of an affirmative defence. It was not sustained by any proof, and was shown by plaintiff to be false by overwhe.ming evidence. It was properly stricken out. The power of the courts to strike out affirmative defense averred upon information and belief, and not sustained by proof, is established by the court of last resort. (44 N. Y. 565; 45 N. Y., 281,)

Order affirmed.

Opinion by Brady, J.; Davis, P. J., and Daniels, J., concurring.

PROMISSORY NOTE. DEFENSE.
PHILADELPHIA COMMON PLEAS, No. 1.
Bank v. Marquis.

Decided March 18, 1876.

The pendency of a foreign attachment against the payee of a note in which defendant is made garnishee, is no defence to a suit by the holder against the maker.

Rule for judgment for want of a sufficient affidavit of defence.

Assumpsit on a promissory note. drawn by the defendant to the order of one Strasburger, by whom it was endorsed and negotiated.

The affidavit of defence set forth that plaintiff's name was being used merely

have the allegation based on information and belief, as to the insured's intemperance, stricken out as sham, and the allegation as to the terms and conditions stricken out as irrelevant. A number of affidavits were read by plain- for the purpose of collection; that a tiff on the motion, showing insured to to have been a sober, industrious man. No proof was offered by defendant to the contrary.

Motion granted.

J. A. Gross for respt.

F. C. Cantine, for applt.

On appeal Held, That if the alleged

suit of foreign attachment had been commenced against Strasburger upon the same note, in which defendant had been made garnishee, and that he was willing to pay the note, but was uncertain whether he should pay it under the attachment or the present suit.

Rule absolute.

for the delivery of the potatoes, and the plaintiff could not have been expected to be at Livonia Station at any particular time to receive and pay for them. The parties, I think, did not contemplate payment at that place. The de

N. Y. SUPREME COURT-GEN'L TERM. fendant was to put the potatoes in the

FOURTH DEPARTMENT.

Kester, applt. v. Reynolds, respt. Decided January, 1876. A contract to sell and deliver potatoes and ship them on the cars, where the parties have had other dealings, is not satisfied by a delivery at the depot, and party cannot rescind because no one is at depot to pay for them.

In May, 1874, an agreement was en

tered into, by letters, between plaintiff and defendant in and by which defend. ant was to sell to plaintiff a carload of potatoes, to be put in bags furnished by plaintiff, and to be delivered on the cars at Livonia Station, in this State, to be sent to plaintiff at Buffalo at the price of eighty cents per bushel.

Plaintiff did furnish bags; defendant put all of the potatoes in the bags and brought them to the station.

Plaintiff was not at the station to pay for the potatoes nor had they any one there to pay for the same.

Defendant refused to ship the potatoes, and this action was brought for damages for a breach of the contract.

On the trial plaintiff offered to prove that in prior deliveries between the parties when plaintiff made similar purchases of the defendant, defendant. drew on plaintiff for the price after he had shipped the potatoes. This evidence was rejected and a judgment ren dered for defendant.

M. C. Day for applt.
Nash & Southerland for respt.
Held, The non-suit we think was er-
roneously granted. No time was fixed

plaintiff's sacks and ship them by the railroad to Buffalo, where the plaintiff resided. In the letter of defendant

dated the 2d of May the defendant wrote the plaintiff that he had the potatoes bought and would ship them as soon as drawn in. This implies that he was to ship or deliver them on board the cars for the defendant, to be trans

ported to Buffalo without previous payment. Nothing was said about payment, and it is perfectly clear, I think, be made until the potatoes were receivthat neither party expected payment to ed at Buffalo. Delivery to the carrier selected by the plaintiff was a delivery to them, and that was necessarily to delivery were not to be contemporaneprecede the payment. Payment and ous acts. The defendant had had, preproposed to send them the potatoes viously, dealings with the plaintiff, and without pre-payment, trusting to their would have had the right to stop the credit and responsibility. Doubtless he potatoes in transitu, after delivery on the vendees, or exact payment before board the cars, upon the insolvency of they reduced them to actual possession. But he was bound to do the first act. He was bound to put the potatoes into plaintiff's sacks and deliver them to the carrier for shipment to him at Buffalo. The sending back their sacks unfilled, coupled with proof of the sale and delivery of the potatoes purchased and put in them, to Comstock, was a breach of the contract on the defendant's part, and a refusal to fulfil the

same, and in any view excused the edge for record, formal satisfaction and plaintiff from the necessity, if any such discharge of all real estate mortgages, ever existed, of demanding the potatoes which came to him as receiver, upon the and tendering the price. It was error, payment to or collection by him thereof also, to refuse to allow the plaintiff to of debts in payment of which they are show the course of the dealings between given to secure." The mortgage in suit them and the defendants. Extrinsic was paid to the receiver while this orfacts of this kind are always admissible der was in force, by Mr. Hill before it to aid in the interpretation of contracts was due, without the previous request and what is rationally and naturally in- of the mortgagor, but the payment was ferrable, or to be implied as to the un- afterwards ratified by him. derstanding and intent of the parties A. Hadden, for applt. at the time of the making of the conS. S. Rogers, respt. tract should be deemed part of or included in it. The non-suit should be set aside and a new trial granted upon the usual terms.

Opinion by E. Darwin Smith, J.

RECEIVER, AUTHORITY OF.
N. Y. COURT OF APPEALS.

Held, that the order of June 2, 1870, was broad enough to authorize the receiver to receive the money unpaid on mortgages held by him as receiver, whether due or not at the time of paymant; that the ratification of the payment by the mortgagor after its receipt. by the receiver was equivalent to an original authority to make the payment

Hurmans, Trustee, &c., applt. v. (Story on Ag,. § 239, 15 N. Y., 580), Clarkson, respt.

Decided February 8, 1876. An order "to execute and acknowledge formal satisfaction and discharge of all real estate mortgages" held by a receiver, authorizes him to satisfy and discharge, upon payment, a mortgage not yet due.

This action was brought by plaintiff, as trustee of F., among other thing to set aside a satisfaction and discharge of a bond and mortgage made by one B., a receiver appointed in an action in which F. was plaintiff, and the plaintiff herein, defendant. The order appointing the receiver gave him power "to lease the real estate and receive the rents and profits thereof, and sue for and collect such debts as are or may be come due. A subsequent order was made June 2, 1870, in the action, by which the receiver was authorized and empowered "to execute and acknowl

and that the mortgage was properly rati fied and discharged.

Judgment of General Term affiming judgment for defendant, affirmed. Per curiam opinion.