Lounsbury v. Depew

Headnote

Where a promissory note was shown to have been in the possession of, and owned by, the payee within four or five days of his death, and there was no evidence of any transfer thereof by him, in his lifetime, but about two weeks after his death his widow was in possession of it, claiming it as her own, and she subsequently negotiated it to the plaintiff; and it appeared that the payee died intestate and indebted, and no letters of administration had been issued : Meld that it was to be inferred, from these circumstances; that the note belonged to the payee, at the time of his death, and that his widow not being his legal representative, nor the owner of the note, had no right to transfer the same to the plaintiff. Wright, P. J., dissented.

Meld also, that the defendant was not estopped from setting up a want of title in the plaintiff, by the fact of his having made payments upon the note, while it was held by the widow, and to the plaintiff after it came into his hands, some of which payments were indorsed upon the note by the defendant in his own handwriting. Wright, P. J., dissented.

Estoppels, as they operate to exclude the truth, must be strictly construed. Per Hogeboom, J.

THIS is ap appeal by the defendant from a judgment rendered in favor of the plaintiff on the. 1st day of July, 1856, upon the report of a referee. The plaintiff’s claim was for a sum of #34.93, found due from the defendant to him on settlement, on the 16th of March, 1855, and also for the amount of a promissory note executed by the defendant, dated the 18th of March, 1855, and payable to James Carroll or bearer, one day from date, with interest. Judgment was rendered in favor of the plaintiff for both of these amounts, with costs. J ames Carroll, the payee and original holder of the note, died in the latter part of March, 1855. By the report of the referee it appears that the note was at one time his property. The referee gives no specific date. By the evidence of William T. Hornbeclc it appears that the witness knew of Carroll’s holding this note, about six weeks before his death, and by the evidence of John Hornbeck it appears that Carroll had the note three weeks before his death; indeed, within two weeks of his death, for the same witness swears that Carroll was sick for two weeks and that during his sickness the witness, at his request, took the note and collected some money on it from the defendant, which is indorsed on the note. There are only two indorsements on the note in March, 1855, to wit: the 26th and 27th of March, and as Carroll died in the latter part of March, the payments must have been made at farthest within four or five days of his death. There is no evidence of the transfer of the note by Carroll. His widow, Mary Ann Carroll, is shown to have been in possession of it about two weeks after his death. She was sworn in the, case and testified that she negotiated it to the plaintiff and got the amount of it in trade at his store in J une, 1855, in family necessaries ; that she expected the plaintiff knew how she came by the note, but did not recollect that she told him she got it from her husband; that it was generally understood in the neighborhood how she got the note. She subsequently says, that she told him she had a note which Carroll had given to her as hers, It does

not appear when this alleged gift was made. William T. Hornbeclc testifies that on the occasion when Carroll spoke to him about the note, he algo said that he had told his wife to put the note in the trunk “ and then I will know where to find it, or if you should want it.” Carroll owed debts when he died, which are still unpaid, and left him surviving a wife and two children. Carroll left no will, and no letters testamentary or of administration were taken out upon his estate. The defendant made repeated payments upon the note, to the widow or her agent, after her husband’s death, which were indorsed upon the note in the defendant’s handwriting, which handwriting was known to the plaintiff. The defendant also made two or more payments upon the note to the plaintiff himself. The creditors of Carroll forbade him to pay on the note. The parties all resided in the same village or neighborhood, and were well acquainted with each other. The widow, before transferring the note to the plaintiff, applied to the defendant for a payment upon it, which he did not make, and she then informed him she should sell the note, and he said “ sell on.” Upon these facts the referee reported in favor of the plaintiff for the amount of both the account and note, and the defendant duly excepted.