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PROMISSORY NOTE. ENDORSE- | constituted by the plaintiffs. They MENT.

then sent it to the defendant, who enN. Y. SUPREME COURT, GEN. TERM, dorsed his name upon it, and returned FIRST DEPARTMENT.

it to the messenger, and he gave it to George M. Weld, et al., respts., v.

the plaintiffs. They credited the twenty Henry E. Bowns, applt.

per cent. to be allowed for the endorse

ment in the defendant's account, and Decided April, 1876.

he had the benefit of it in their settleAn endorser will become liable upon ment.

his endorsement to the payee of the paper when he has made himself When the note came due it was prosuch for the purpose of securing tested for non-payment, and notice of

credit for the makers. The payee upon a note may show by

its dishonor given to the defendant. parol evidence that the party endors. The plaintiffs and payees had previonsing 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 appear

Treadwell Cleveland for respt. ing to be prior parties upon it, when Wm. W. Mann for applt. they are shown to have agreed to assume that relation, and the ugree

Held, That without the existence of ment was made upon a sufficient the agreement made for the defendants consideration.

endorsement, he would stand as the Appeal from a judgment recovered second endorser on the note, and for upon a referee's report in favor of plain that reason not liable to the plaintiffs, tiff.

to whose order it was payable, and who The facts found by the referee are by their endorsement of it became ossubstantially as follows: That the tensibly its first endorsers. Bacon v. 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 plaintitfs 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 reduced 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

render the second liable as the first en- whom reside in Philadelphia, but M. dorser upon it.

H. C. Place, acting under the instrucThe authorities establish the right of tions of defendant Justice, appeared the payee to show by parol evidence and interposed an answer in their behalf. that the party endorsing commercial The defendants, Hagy & Knowles, paper as the second endorser, had really until the latter part of November, 1875, bound himself and designed to become when they learned that they were parthe first endorser. The later authorities to this suit, that an order of referties in this state maintain the principle ence had been entered on the trial of that persons endorsing commercial pa- the case, had proceeded until nearly the per should be held liable to those ap- whole of plaintiff's proof had been inpearing to be prior parties upon it, troduced, 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, IIagy & Knowles, from Matthews, 54 N. Y., 43; Phelps v. the denial of which motion this appeal Vischer, 50 N. Y., 69.

was taken. Judgment affirmed.

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. authorized by his copartner to authorize

an attorney to appear for his copartners. ATTORNEY. APPEARANCE.

Heli, That the objection that the N. Y. SUPREME COURT-GENERAL TERM, appearance for Hagy & Knowles by FIRST DEPARTMENT.

the first attorney was unauthorized is a James II. Lyles, et al., v. John M. valid objection. Edwards v. Carter, 1 Hagy, et al.

Strange, 473; Phelps v. Brewer, 9 Decided March 31, 1876.

Cush., 390; 47 Hlow., 470; 8 Paige 176. One partner has no right, unless speci But held that it is unnecessary to disfically authorized, to retain an attorney to appear in an action for his pose of that question, as an attorney was copartners in a suit brought against afterwards substituted who was authorall the copartners.

ized directly by the defendants, Hagy Appeal from order made at Special & Knowles, to appear, and it would seem Term, denying motion to cancel the ap. inequitable to have them relieved enpearance of the defendants, Hagy & tirely from their appearance, they being Knowles.

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. 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 ners in this business.

them to serve their answers to the comNo 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

But they

order to be entered on the decision of fact which invoked the use of the terms this appeal, and the order of reference and conditions was false, and was strickshould be wholly vacated without costs en out, they necessarily became irreleof appeal to either party.

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

The alleged intemperance was based J., concurring

upon information and belief, and was

the avowal of an affirmative defence. PRACTICE. SIIAM ANSWER.

It was not sustained by any proof, and N. Y. SUPREME COURT, GENERAL TERM, was shown by plaintiff to be false by FIRST DEPARTMENT.

overwhe.ming evidence. It was propGaul, rcspt., v. The Knickerbocker erly stricken out. The power of the Life Insurance Co., applt.

courts to strike out affirmative defense Decided March 31, 1876.

averred upon information and belief, An affirmative defence, alleged upon and not sustained by proof, is establish

information and belief, unsustained ed by the court of last resort. (44 N. by proof, may be stricken out as Y. 565; 45 N. Y., 281,) sham.

Order affirmed. Appeal from an order striking out an

Opinion by Brady, J.; Davis, P.J., affirmative defence as sham.

and Daniels, J., concurring. This action is brought upon a policy of life insurance, issued by defendant, PROMISSORY NOTE. DEFENSE. in favor of plaintiff, upon her husband's PHILADELPHIA COMMON Pleas, No. 1. life, he having heretofore died. The

Bank v. Marquis. answer, among other things, alleged

Decided March 18, 1876. upon information and belief that the insured had, since the issuing of the The pendency of a foreign attachment

against the payee of a note in which policy, become an inebriate and died

defendant is made garnishee, is no in consequence of intemperance; and

defence to a suit by the holder that in consequence, in accordance with

against the maker. its terms and conditions the said pol

Rule for judgment for want of a suficy became and was void before the in- ficient affidavit of defence. sured's decease. Plaintiff moved to

Assumpsit on a promissory note have the allegation based on informa- drawn by the defendant to the order of tion and belief, as to the insured's in-one Strasburger, by whom it was entemperance, stricken out as sham, and dorsed and negotiated. the allegation as to the terms and con The affidavit of defence set forth that ditions stricken out as irrelevant. A plaintiff's name was being used merely number of affidavits were read by plain- for the purpose of collection ; that a tiff on the motion, showing insured to suit of foreign attachment had been to have been a sober, industrious man. commenced against Strasburger upon No proof was offered by defendant to the same note, in which defendant had the contrary.

been made garnishee, and that he was Motion granted.

willing to pay the note, but was uncerJ. A. Gross for respt.

tain whether he should pay it under F. C. Cantine, for applt.

the attachment or the present suit. On appeal Held, That if the alleged Rule absolute.

VOL. 2.)

MONDAY MAY 3, 1876.

[No. 13.

NEW YORK WEEKLY DIGEST. for the delivery of the potatoes, and

the plaintiff could not have been expected to be at Livonia Station at any par

ticular time to receive and pay for them. CONTRACT. NON-PAYMENT.

The parties, I think, did not contemDELIVERY

plate payment at that place. The deN. Y. SUPREME COURT—GEN’L Term. fendant was to put the potatoes in the FOURTH DEPARTMENT.

plaintiff's sarks and ship them by the Kester, applt. v. Reynolds, respt. railroad to Buttalo, where the plaintiff Decided January, 1876.

resided. In the letter of defendant A contract to sell and deliver potatoes dated the 2d of May the defendant

and ship them on the cars, where the wrote the plaintiff that he had the poparties have had other dealings, is tatoes bought and would ship them as not satisfied by a delivery at the de

soon as drawn in. This implies that he pot, and party cannot rescind because

was to ship or deliver them on board no one is at depot to pay for them.

the cars for the defendant, to be trans In May, 1874, an agreement was entered into, by letters , between plaintif ported to Buffalo without previous pay

ment. Nothing was said about payand defendant in and by which defend.

ment, and it is perfectly clear, I think, ant was to sell to plaintiff a carload of

that neither party expected payment to potatoes, to be put in bags furnished by be made until the potatoes were receivplaintiff

, and to be delivered on the cars ed at Buffalo. Delivery to the carrier at Livonia Station, in this State, to be selected by the plaintiff was a delivery sent to plaintiff at Buffalo at the price to thein, and that was necessarily to of eighty cents per bushel. Plaintiff did furnish bags ; defendant delivery were not to be contemporane

precede the payment. Payment and put all of the potatoes in the bags and

vus acts.

The defendant had had, prebronght them to the station.

viously, dealings with the plaintiff, and Plaintiff was not at the station to pay proposed to send them the petatoes for the potatoes nor had they any one without pre-payment, trusting to their there to pay for the same. Defendant refused to ship the pota- rould have had the right to stop the

credit and responsibility. Doubtless he toes, and this action was brought for

potatoes in transitu, after delivery on damages for a breach of the contract.

board the cars, upon the insolvency of On the trial plaintiff offered to prove the vendees, or exact payment before that in prior deliveries between the

they reduced them to actual possession. parties when plaintiff' made similar pur. But he was bound to do the first act. chases of the defendant, defendant lle was bound to put the potatves into drew on plaintiff for the price after he

plaintiff's sacks and deliver them to had shipped the potatoes. This evi- the carrier for shipment to him at dence was rejected and a judgment ren Buffalo. The sending back their sacks dered for defendant.

untilled, coupled witii proof of the sale M. C. Day for applt.

and delivery of the potatoes purchased Vrsh Southerland for respt.

and put in them, to Comstock, was a llell, The non-suit we think was er-' breach of the contraci on the detendroneous!y granted. No time was fixed ant'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. IIadden, for applt. at the time of the making of the con

S. S. Rogers, respt. tract should be deemed part of or in Held, that the order of June 2, 1870, cluded in it. The non-suit should be was broad enough to authorize the reset aside and a new trial granted upon ceiver to receive the money unpaid on the usual terms.

mortgages held by him as receiver, Opinion by E. Darwin Smith, J. whether due or not at the time of pay

mant; that the ratification of the pay

ment by the mortgagor after its receipt RECEIVER, AUTHORITY OF.

by the receiver was equivalent to an N. Y. COURT OF APPEALS.

original authority to make the payment Hurmans, Trustee, &c., applt. v. (Story on Ag, $ 239, 15 N. Y., 580), Clarkson, respt.

and that the mortgage was properly ratiDecided February 8, 1876.

fied and discharged. An order to execute and acknowledge. Judgment of General Term affiming

formal satisfaction and discharge of judgment for defendant, affirmed.
all real estate mortgages" held by a Per curiam opinion.
receiver, authorizes him to satisfy
and discharge, upon payment, a SETTLEMENT OF CASE.
mortgage not yet due.

GENERAL TERM SUPREME COURT. FIRST This action was brought by plaintiff,

DEPT. as trustee of F., among other thing to

John Bohnet, applt. v. Leopold Li. set aside a satisfaction and discharge of

thauer, respt. a bond and mortgage made by one B.,

Decided March 31, 1876. a receiver appointed in an action in which F. was plaintiff, and the plaintiff The forty-first rule of the courts of re

cord of New York State does not herein, defendant. The order appoint

entitle the party making a case as a ing the receiver gave him power to

matter of absolute right to the use of lease the real estate and receive the

the stenographer's notes. rents and profits thereof, and sue for Any other statement showing what the and collect such debts as are or may be.

evidence was may be used instead of

those notes come due. A subsequent order was

The matter has been commilcu very made June 2, 1870, in the action, by

much to the jndgment and discretion which the receiver was authorized and

of the justice before whom the trial empowered "to execute and acknowl be

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