Mason v. Hickox , 11 Abb. Pr. 127 ( 1870 )

J. F. Barnard, P. J.^*

The court at the trial, fell into an error, in holding as matter of law, that the plaintiffs were not bona fide holders for the value of the note in question. YaU, from whom the plaintiff obtained the note, was indebted to the plaintiffs for rents collected, in the sum of two hundred and eighty-nine dollars, immediately payable. The note amounted to fifteen dollars more than the debt. The note was taken in settlement of the debt so due, and by allowing Yail to retain fifteen dollars out of the next month’s collection of rent, to be made by Yail for plaintiffs, which sum was so collected and retained before the maturity of the note. This transaction, if done in good faith and without notice of the fraudulent diversion of the note by Yail, constituted the plaintiffs bona fide holders for value within the cases. The plaintiffs settled the claim against Vail, extended the time of payment, and advanced a new consideration.

There was nothing in the fact that Vail was in arrears thirty dollars for the rents due the preceding months, which, as a matter of law, made it the duty of plaintiffs to inquire as to the note. It does not appear that the thirty dollars had been collected during the month preceding the transfer of the note. Mason testified he was only indebted one floor for the month of October, which he had not collected.

The judgment must be reversed, and a new trial granted, costs to abide the event.

* Present, Barnard, P. J., and Tappan and Pratt, JJ.