Harris v. Fowler

Dayton, J. (dissenting).

The only defense interposed by the answer is that defendant loaned the check to Clarke for his pay-roll, but he, Clarke, diverted it toward the payment of an antecedent debt due to plaintiff, who parted with no value therefor.

There is no allegation or proof that plaintiff had knowledge that the check was given for Clarke’s accommodation. Plaintiff testified that when he received the check Clarke owed him $411, leaving the -indebtedness $275. ¡Notwithstanding this balance plaintiff, at the same time, gave Clarke his check for $70 for services, Clarke stating that the $70 check would make the $125 check good. Defendant testified that, notwithstanding Clarke’s indebtedness to him, he (defendant) frequently loaned him checks for pay-rolls which Clarke always repaid; and so, in this instance, for that purpose, he loaned Clarke the $135 cheek, which Clarke promised to make good the next hank day; that Clarke had repaid him $91 on account of this check.

The so-called diversion could not affect defendant’s rights, who had no interest in the use which Clarke made of his accommodation check. Daniel Neg. Inst., § 792. . Plaintiff’s position now is that he took the check on account of Clarke’s indebtedness — a good defense to Clarke, should plaintiff attempt to return the check and sue on the debt. The $135 check was given September 28, 1907. This action was not brought until November 8, 1907. During that period of forty-one days defendant made no objection to plaintiff’s possession of the check, and actually received from Clarke plaintiff’s check for $70 and $-21 in addition, toward repayment of the $135.

The defense is without merit in law or fact, and the judgment should be reversed.

Judgment affirmed.