Norton v. Edgar , 1873 N.Y. App. Div. LEXIS 61 ( 1873 )

By the Court, Mullih, P: J.

When the defendant left the court room, after the trial of the case was terminated, he must have been dumb with astonishment at the result of what he doubtless considered a triumphant defence.. When he entered upon it he was the owner of an interest in the note, on which he was sued, of some $400 ; when he got through, that interest was gone, and a verdict rendered against him for the whole amount of his co-owner’s interest in the note.

Whether .this verdict can be sustained depends on the question, whether the plaintiff is a bona fide holder of the note on which the suit is brought, for value and without notice of the defendant’s rights, and whether he acquired it in the usual course of business, and before maturity. Perrin swears that he sold the whole interest in the note to tire plaintiff by the authority of the defendant. The defendant denies that he ever gave Perrin any such authority ; and if the plaintiff’s title depended in any degree on such authority, the question presented by tins conflicting evidence should have been submitted to the jury. The court however utterly refused to submit any question of fact to the jury; and after so broad a refusal, it would have been useless to call on the court to submit this specific point to them.

For the purposes of the case, we must assume that the jury would have found that the defendant did not authorize Perrin to sell his interest in the note. . If not, then the plaintiff acquired only the interest of Perrin in the note.

Perrin’s interest was the sum of $1,623.30, due from the makers of the note, As between Perrin and the defendant, the former could not maintain an action against the defendant on his endorsement. If Perrin was authorized to sell the' defendant’s interest, and did sell it to the plaintiff, with his own, then the whole interest passed to the plaintiff; and whether the plaintiff could recover against the defendant as endorser, would depend upon whether he obtained it under circumstances which entitled him to insist that the defendant was es-topped from proving facts which would protect him against such a liability. The sale to the plaintiff was on the 18th of ¡November, 1868, or nearly a week before it came due. It was after the sale of the note by the constable, on the attachment, and after the purchase of it by the plaintiff, on that sale.

The plaintiff when he purchased knew the defendant was a j oint owner of the note. He acted with Carter in procuring the issue and levy of the attachment on the interest of the defendant, in the note. He therefore knew, as matter of law, that being a joint owner with Perrin he (the defendant) could not be liable as endorser, to any person cognizant of the defendant’s relation to the note.

If the plaintiff relies on his purchase at the constable’s-sale he is in a still worse condition. He knew that the officer had seized and offered for sale, and he purchased, only the interest of the defendant, in the note. That was a claim against the makers of the note for some $376. Such a sale and purchase carried no interest in the endorsement of the defendant, on which an action could be maintained, and yet the plaintiff has been permitted to recover the amount of Perrin’s interest in the note against the defendant as endorser.

[Fourth Department, General Term, at Syracuse, January 7, 1873.

Mwllin, Talcott and E. E. Smith, Justices.]

There is still another difficulty in the way of the plaintiff, if he claims on a purchase of the whole note from Perrin. If Perrin is right ip saying he sold the note on the 18th of November, it is manifest that on that day the plaintiff was the owner, to the extent of the defendant’s interest in the note; and all that Perrin had to sell was his own share of the note; ■ so that it cannot be true that Perrin at any time sold the whole interest in -the note to the plaintiff.

There must be a new trial, with costs to abide the event.