Cook v. Clark , 4 E.D. Smith 213 ( 1855 )

By the Court.

Woodruff, J.

It is settled as the law of this state, that where, on the endorsement of a note, the consideration passing between the endorsee and his endorser, is not equal to the amount of the note, the endorsee, in an action against the endorser, can only recover the consideration he has actually paid, with interest. (Brennan v. Hess, 13 J. R. 52.) And when such endorser is a mere accommodation endorser, and no intermediate party has paid any thing for the note, then such payment of a part of the amount of the note by the purchaser, to the party at whose request such accommodation endorsement was made, will avail the purchaser to no greater extent than if he had paid such partial consideration to the endorser directly.

Such were in substance the facts in Munn v. The President, &c., of the Commission Company, 15 J. R. 44; and it is there said, that the holder of a note purchased at a discount greater than the legal rate of discount, (although the note is valid to the full amount against prior parties,) can only recover against his endorser the sum he actually advanced.

This doctrine is fully discussed and recognized by the Court of Errors, in Cram v. Hendricks, 7 Wend. 569. I do not tbinlr the question open for discussion here.

The judgment must be reduced to $220, the amount paid, and interest from September 21, 1854, (the date of the note, it not appearing that the sale was at a later day,) and 75 cents for the fees of protest, and the judgment should be affirmed for that sum and costs, without costs to either party on the appeal.

Had the action been against a prior party, who made or endorsed the note for value, the plaintiff would undoubtedly be entitled to recover the full amount of the note.

Judgment reduced to the amount paid, with interest and fees of protest, and affirmed to that extent, without costs of appeal to either party.