Beadle County National Bank v. Hyman

Garnett, J.

The record in this case is very large and the briefs very elaborate, covering in argument a number of intricate questions, but we regard the case as turning upon a very simple point and shall therefore confine our attention to that. The action was assumpsit upon the following letter:

“Chicago. Nov. 20, 1884.

F. E. Stevens, Esq., Pres’t Beadle Co. Nat. B’k, Huron, D. T.

Dear Sir:—The hearer, Mr. M. F. Moss, may have occasion to call upon you for assistance during his stay at Huron. Any favor you may be pleased to extend to him you may hold us responsible for, or should he wish to draw upon us for money, we will honor his draft upon presentation.

Tours very respectfully,

S. Hyman & Co.”

At the time the letter was written the bank and S. Hyman & Co. were severally creditors of the firm of L. Adler & Co. of Huron, Dakota, which was then insolvent. There is a dispute whether Moss went to Huron as the representative of Hyman & Co. in the matter of their claim, and as to the time of the presentation of their letter, and what was said on that occasion, but. it is not denied that the bank sold to Moss its claim against L. Adler & Co., and as payment therefor received his promissory note dated November 28, 1884, for §>2,731.48, payable December 11,1884, with interest at twelve per cent per annum after maturity. On the back of the note was this indorsement: “If an extension of thirty days is desired it may be had.” It appears from the evidence that an extension of thirty days was given for the payment of the note.

The plaintiff claims to have had possession of the letter sued on at the time of the execution of the note, but defendants deny it. But plaintiff says, even if the evidence fails to show its possession of the letter when the note was executed, it certainly had possession thereof when the extension was granted, and so the defendants are liable as guarantors. We think it makes no difference when the letter was handed to the bank. It does not contemplate such a transaction as the selling of a bad debt by the bank to Moss. There was nothing in the relations between the plaintiff and defendant in the terms of the letter, or in the surrounding facts, which authorized such a conclusion.

We have examined the record carefully to ascertain whether there was anything in the evidence to warrant the construction given to the letter by the bank, and we are clearly of opinion there is nothing of the kind.

[Opinion filed January 8, 1890.]

The judgment is affirmed.

Affirmed.