Hutchins v. M'Cann , 7 Port. 94 ( 1838 )

OSMOND, J

— It is a principle of law too well settled to be questioned, and indeed is admitted by the counsel for the plaintiff, that in an action by the assignee against the assignor, the-maker having failed to pay, the proper measure of damages is the sum of money which constituted the consideration of the assignment, with interest anti With this principle in view, let us examine the transaction. One llilihouse wished to borrow two hundred dollars of t,.e plaintiff, and for that purpose, executed several notes, amounting) in all, to three hundred and nineteen dollars. These notes were made payable to the defendant, who assigned them to the plaintiff, and received the said sum of two hundred dollars, which he handed over to Hillhouse.

Had each of these notes been sold at a fixed price, there could have been no doubt that the right of the plaintiff to recover of the defendant, was perfect on each of the notes, and on the failure of’ the maker to pay any one or more of them, he could have maintained an action for the consideration of the assignment.

The difficulty that arises in this case, proceeds from the fact, that the consideration paid by the plaintiff to the defendant, on the assignment and transfer of the notes, has been paid to him on a portion of the notes, leaving the note, in this case, unpaid. But this cannot affect the question, if the contract .was entire. We think the evidence clearly established the unity of the transaction; a decisive test of this, is the fact, that a round sum was given for all the notes — the sum of two hundred dollars. Suppose that no part of the money had been paid by the maker, could any more than the sum of two hundred dollars and interest have been recovered of the endorser 7 It is clear that there could. n.ot. How then, is the ease varied, by the maker paying a part of the notes. He could not, by any act of his, affect the contract between the endorser and endorsee, or diminish or enlarge the amount, legally recoverable of the former.

If, as the contract shows, there was a sale of all the notes for an entire sum, and not a sale of each note for a specific sum, the effect of the endorsement, as to the amount to be recovered from the endorser, is the same that it would he, if there had been but one note for the whole amount, and that had been sold for two hundred dollars. In that event, if the maker had paid the sum which constituted the consideration of the endorsement, no one will contend there could have been any further recovery of the endorsee.

We have been referred by the counsel for the plaintiff in error, to the case of Brown vs Mott, (7 Johns. R. 361.) The suit there was, by the second against the first endorser. The court determined, that in the absence of proof, the plaintiff must be presumed to have paid the full value of the note to the holder, and therefore had a right to recover that, amount of his endorser. The court say: “ Or if he had purchased it, or taken it up at a reduced price, it would seem he could only recover the amount paid; but as the drawer originally raised the money upon the note, with the endorsement of the present parties, the note must have been returned to the plaintiff by the subsequent holder, and he must have taken it up for its value.” It is not perceived that this decision militates against the decision now made; but so far as the cases are analagous, sustains it.

It is, however, insisted, that as the court below in charging the jury, laid some stress on the fact of the defendant being an accommodation endorser merely, that the jury were misled, and the judgment must be reversed for that cause.

Admitting that the charge of the court, in so far as it supposed any difference to exist between the case of an accommodation endorser and one for value, — so far as the rights of the endorsee or holder were concerned, was erroneous, — it is not perceived how that could prejudice the plaintiff. It was at most, mere;y an opinion on an abstract question of law, not necessary to be decided in the case, and which could not do injury.

In conclusion, the court say, if the plaintiff has received from the defendant, or from Hillhouse, the sum he • paid for the notes, and interest on that sum, he is not entitled to a verdict.

This being the law of the case, there was no error in the charge of the court; and the judgment must be affirmed.