Hankerson v. Emery , 37 Me. 16 ( 1853 )

Tenney, J.

— The only questions raised by the exceptions, which are relied upon in argument, are: — First, was Merry, the indorser of the note, after his release by the plaintiff, a competent witness for him ? Second, is the plaintiff to be deprived of his costs of suit, and the defendants to have a judgment for their costs, on the ground of any usurious taint in the note ?

The mote in suit, being overdue, when it was negotiated, and indorsed by the payee, Merry, “not holden,” the plaintiff, as the holder, is entitled to the amount due thereon, from the makers, unless there is proof of facts, not indicated by the note itself. If Merry, by any act of his, while he held the note, discharged one or more of the defendants, he was not liable to the plaintiff, in the character of indorser of negotiable paper, against'his express stipulation, before he was released. But Ms liability, if any, was the result of the receipt of the full value of the note, at the time of the transfer, purporting to be valid against all the signers.

If, from a belief of the indorsei’, that he was exposed to a suit, on account of Ms representation of the liability of all the makers, when a. part were discharged, and he apprehended such suit would result in a judgment0 against him, he gave his own note for the sum of one hundred dollars and one dollar more in money for a release of the plaintiff, from all claim on account of the note, which he had transferred, as an agreed equivalent for the risk, under a Ml knowledge of all the facts, the note so given cannot he regarded as destitute of consideration. And the consideration would not fail by the payment of the full amount of the paper indorsed. The indorser has not paid by his note to the plaintiff, any portion of the debt, as an indorser in the legal sense of the term, having thereby an interest in the note, against one or more of the makers; hut in the terms of the release, he is discharged of all liability on account of the note. It was manifestly the design of the plaintiff, and of Merry, that the former should continue to he the exclusive owner of the note, which he had purchased of the latter, who was willing to sustain a certain fixed loss in order to he relieved from the risk of a greater one; and the plaintiff chose to take the note of Merry for a sum less than that due on the note in suit, rather than be exposed to the failure of his action against the defendants-, without Ms testimony, and thereupon driven to the uncertain remedy against Mm. No disqualifying interest in Merry, as a witness-, is cshown, after he was released by the plaintiff.

It was admitted, that when Merry took the note, the sum of §1,87, extra interest, was reserved in accordance with the previous agreement with Emery. But this sum was indorsed under a date corresponding with that of the note, before the commencement of this action. The damages therefore cannot be reduced By proof of such usurious interest. We are to understand the proof of usurious interest as used in the statute of 1846, c. 192, to be from the evidence adduced at the trial, and not that afforded by an indorsement therefor, before the institution of the suit, and this construction of the statute is similar to that given to the R. S. c. 69, § 7, in Cummings v. Blake, 29 Maine, 105.

Exceptions overruled. — Judgment for the plaintiff on the verdict with costs.

Shepley, C. J., and Howard and Appleton, J. J., concurred.