Cock & Thompson v. Brown & Carmichael

By the Court,

Lumpkin, J.,

delivering the opinion.

We think the verdict strongly and decidedly against the evidence in this case. Indeed, we see no proof whatever that Rouse intended to transfer absolutely the $5,000 00 note for the $1,000 00 which he borrowed of Brown. It should be clear and unequivocal proof to support such a transaction. When he got the money, he promised to return it in ten days, or send the $5,000 00 note by Carmichael — neither of which he did; but the first time he met Brown, he handed him the note, with the declaration that he meant to be as good as his word.

And now, it is insisted, that instead of treating this note as security, only, for the money borrowed, Rouse is to be adjudged to have forfeited $5,000 00 for not returning the $1,000 00 in ten days, which he borrowed. Equity would relieve against such a contract if actually made.

The plaintiffs, as holders of this note payable to bearer, were entitled to sue in their name, not thereby depriving the defendants of any rights of defense which they might have against Rouse.