National Bank of North America v. White — 19 A.D. 390

Majority

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The National Bank of North America, in New York, Respondent, v. H. Winslow White, Appellant, Impleaded with Others.

Headnote

Bills amcl notes—knowledge of a bona fide holder that a note is made for accommodation — an agreement that an accommodation maker shall not be liablemust be pleade d.

■The bona fide holder of a promissory note who has taken it for value, and before ■maturity, may recover upon it, although he knew it to -be an accommodation note as between the parties- to it.

An answer by-the maker of a promissory note denying that the. holder of the note, who knew it to be accommodation paper, paid value therefor, will' not sustain . a defense that there was an agreement between such holder and the maker and the payees of the note that the maker was. not to be held liable, thereon. '■

• Appeal by the defendant, H., Winslow White, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office .of the clerk of the county óf New York on the 5th day of February, 1897, upon the verdict of a jury rendered by direction:- of the-court. . .

James W. Treadwell, for the appellant.

Edwin B. Root, for the respondent.

The action was based upon promissory notes made by the defendant-White tO the order of Walter & Place^ and indorsed by them, The answer sets out: (1) That' the defendant White made the notes to the defendants Walter & Place for their accommodation- and. without consideration. (2) That' the plaintiff'knew or had..notice, at the time of the transfer of the notes to it, that they were made by the defendant White to the defendants Walter .& Place for their accommodation -¡and without consideration. (3) That ¡ the defendant White has no knowledge or information sufficient to form a belief whether the transfer of the notes, to the plaintiff -was for value, or whether the plaintiff is now the lawful owner and holder thereof. /

.■ The first two allegations furnish in ■ themselves no ground of defense, for, as said by Story on' Promissory Notes' (§ 194): It is no “‘defense or bar that the note was known to the holder4o be an

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accommodation note between the other parties, if he takes it for value, bona fide, before it has become due.” (Harger v. Worrall, 69 N. Y. 370 ; Mechanics & Traders' Nat. Bank v. Grow, 60 id, 85.) There remains, then, of the defendant White’s answer only the allegation that the plaintiff did not pay value for the notes. This, with proof of want of consideration as between White and the payees and notice thereof to the plaintiff, would, if established, have been a good defense. That the bank discounted the notes for the payees and that the latter got the full value thereof was not disputed. But on the trial White testified that he received no consideration for the notes, and that he stood as an accommodation maker; and then, instead of showing that the bank did not pay value, he undertook to prove that there was an agreement between himself as maker and the payees and the bank, that he was not to be held liable, and thus it Was sought to bring the defense within the case of Garfield Nat. Bank v. Colwell ( 57 Hun, 169 ). The court very properly rejected "such testimony, because no such defense was pleaded. But even if White had been permitted to answer the questions propounded, and had testified as to what occurred between one of the payees and himself at the time of the making of the note, and as to what the payee stated with reference to his understanding with the bank, this would have been insufficient unless it had been shown that it was as the result of an agreement with the bank that the maker of the note was not to incur any liability, which, in the Garfield Bank Case (siopra), was the basis of the decision, as shown in the subsequent case of Higgins v. O'Donnell ( 68 Hun, 100 ). In other words,-what conversation occurred, between White and the payee at the time of the making of the original notes was entirely immaterial, unless there was evidence in some way connecting what was thus said with the bank. Not only was there no such evidence, but the payee Place, who had the conversation with the cashier of the bank, was examined- on the trial, and there is nothing in his testimony from, which the inference could be drawn that the bank was to accept the note upon an agreement that White was.not to be held liable. The most that could be deduced from what occurred between the cashier of the bank and the payee was that the bank insisted that the notes should contain the name of someone, and White’s was mentioned, in addition to Walter & Place, before making the loan, and that

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the cashier knew that White'was an accommodation maker.. As already pointed out, however, this- did not prevent the bank from holding White liable, for it had a right to determine the conditions upon which it should make the loan, and if White^ even with the knowledge of the bank, became' an, accommodation maker,- that fact would'not prevent the bank from discounting the note, and,, having thus paid valué therefor, recovering as against both the maker and the payees.

We think,, therefore, that the judgment was right and should be affirmed, with costs.

. Van Brunt, P. J., Williams, Patterson and Ingraham, JJ., concurred.

Judgment affirmed, with costs.

Cases cited

Harger v. Worrall 69 N. Y. 370 N.Y. 1877-04-24 p. 391