Patterson v. Hartsock

Opinion by

Hastings, C. J.

This action was commenced before a justice of the peace, on a promissory note drawn by said Patterson in favor of James W. Nealey, an indorser, without recourse, payable in meats when called for at the market price in Burlington.

At the date of the note, it appears Nealey executed and delivered to Patterson an agreement, as follows :

“ I, James W. Nealey, do agree and bind myself to pay to Robert W. Patterson, cash for one half of the meat that I shall purchase of him from this date, until the same shall amount to the sum of two hundred dollars, the other half to be credited on the note which’ I hold against said Patterson, May 11, 1841.

(Signed) James W. Nealet.”

There does not appear to have been before the court below satisfactory evidence that the note was negotiated after due, and the presumption of law being that the note came into the hands of the defendant in error before due, the court below did not err in ruling out the defense set up under the above agreement.

The paper introduced by defendant, if considered in connection with the execution of the note, and legally before the jury, we think would be no bar to a recovery. It is not a matter precedent to the payment of the note, that Nealey should advance half cash for meat purchased on the note. This undertaking of Nealey seems to be independent of the note, although made at the same time, and Nealey testifies that it was executed by him for Patterson’s convenience, and did not enter into the original consideration or transaction.

The law raises the presumption that, at the date of these papers, Patterson was indebted to Nealey in a sum equal to the amount of this note.

Nealey testifies that a demand for payment-of balance due. was made, and if the defendant would avail himself of the collateral agreement, he should have responded, by making a demand on Ms part; but it seems he refuses to pay the note, and does not demand performance of the collateral agreement; being then indebted, he becomes liable to pay, and the court below did not err in ruling out said agreement.

The defendant below proved by said Nealey, that the note in suit was one of the notes mentioned in the agreement, and Nealey at the same time stated, a that said agreement was no part of the transaction or subject matter of the said note, but given only for said Patterson’s convenience.”

The court then refused to permit the defendant to read the agreement to the jury as evidence. The plaintiff in error claims that the court should have permitted Mm to read the paper in evidence, as a stepping-stone to other and further evidence.

Piad the bill of exceptions stated that the defendant proposed to follow up the introduction of the paper with other evidence, the position would perhaps be correct. But the bill of exceptions does not state that any other evidence was offered, and the paper being no bar to the action of itself, it was properly ruled out from the jury, there being no other evidence proposed to be introduced. • See Courtney v. Commonwealth, 5 Rand. 666.

Judgment affirmed.