Chesebrough v. Tompkins — 10 Abb. Pr. 379

Majority

p. 379

CHESEBROUGH against TOMPKINS.

Court of Appeals,

April, 1870.

Headnote

Case on Appeal.—Evidence.

When, on a trial, defendant’s counsel moved to strike out oral evidence, on the ground that it appeared that there was written evidence on the same matter, which plaintiff was bound to produce ; and plaintiff was subsequently nonsuited; and on appeal to the court of appeals, it did not appear, from the case made, what disposition was made of the motion;—Held, that the court of appeals would, if necessary to sustain the judgment, presume that the motion to strike out was granted.

Appeal from a judgment.

Douglas Chesebrough sued Thomas H. Tompkins and George N. Palmer upon a promissory note made by Tompkins to Palmer’s order, and by him transferred.

It was proved on the trial that Tompkins had made the note as payment for some shares in a patented article owned by Palmer, and had given it to one Brown, Palmer’s agent, who had indorsed Palmer’s name upon it.

Some oral evidence was given as to Brown’s,authority to take such notes and indorse Palmer’s name, when it appeared that there was a writing relating to

p. 380

that subject. Defendant’s counsel thereupon called for the writing, and moved that the oral testimony on the question of authority should be stricken out. Pending the decision of the motion, the court nonsuited the plaintiff.

An appeal was taken to the general term, where the judgment was affirmed, and the plaintiff appealed to this court.

J. W. Crane, for plaintiff, appellant.

J. A. Shoudy and W. A. Beach, for defendant, respondent.

The nonsuit was granted on the ground that the plaintiff showed no title to the note. The only witness called to prove the authority of Brown to indorse and transfer the note, was Palmer, the payee.

He testified, in substance, that Brown was authorized by him to sell certain patent rights, and to receive notes in payment, and transfer them so as not to make him (Palmer) liable in any way. On cross-examination, however, he testified that he furnished Brown with printed blank notes, all payable to bearer, to be used in that business; that Brown had authority to take and transfer such notes, and no others; that he had no authority to make notes payable to order, and write Palmer’s name upon them. On further cross-examination, it appeared that Brown’s authority was in writing.

The writing, though called for, was not produced, and the defendant moved on that ground to strike out the oral evidence which had been given as to Brown’s authority.

The case does not disclose what disposition was made of this motion. But inasmuch as the judge non-suited the plaintiff on the ground of want of title, and held that there was no evidence to submit to the jury

p. 381

on that point, it would, if necessary to support his decision, be intended that he granted the motion to strike out, and regarded the oral evidence of authority as excluded.

In that view of the case, there was no evidence whatever of title to the note, and the nonsuit was properly granted.

The judgment should be affirmed with costs.

Judgment affirmed.