Hotchkiss v. Roehm

Per Curiam,

This action to recover the amount of two promissory notes made by the defendant to his own order and by him indorsed, etc., has been thrice tried in the court below, and uniformly resulted in favor of the plaintiff. The last trial was before a referee under the act of 1874, the others were each before a jury.

From the testimony before the referee he found that the notes in suit were sold by defendant’s agent to Charles C. Cokefair of New York City, by whom they were sold before maturity to the plaintiff “ who paid for them by checks and without knowledge of the consideration given by Cokefair.” The consideration moving from Cokefair in his purchase was part cash and residue in notes of himself and others, the greater part of which afterwards proved worthless. Among these were two indorsed by the plaintiff.

The referee was requested by the defendant to find that the plaintiff “had full knowledge of the consideration” aforesaid; but he refused to do so. Exceptions to his report were dismissed and the report confirmed by the court below. In such circumstances the findings of fact by a referee, or what is the same thing, his refusal to find, cannot be reversed where there is evidence to support the finding, or, in the case of his refusal to find as requested, there is no evidence that required him to do otherwise. While it is not ordinarily the province of an appellate court to decide on the preponderance of evidence in such cases, it may not be amiss to say that, as it appears to us, the referee was right in refusing to find as requested, and also to suggest that the evidence of collusion between plaintiff and Cokefair is unsatisfactory and inconclusive. The discrepancy, as to dates and other details, as narrated by the witnesses, bears quite as strongly against the allegation of conspiracy as it does in support of it.

The offer to rescind was too late. It was not made until more than a month after the maturity of Cokefair’s note. If the defendant did not authorize the exchange of notes he should have said so as soon as the new notes came into his hands.

The notes indorsed by the plaintiff and held by defendant did not mature until after this suit was brought. Defendant’s offer to set off the amount of said notes was therefore properly refused.

We find nothing in either of the assignments of error that requires discussion. A careful consideration of the record has failed to disclose any substantial error therein.

Judgment affirmed.