Labron v. Woram — 1 Hill & Den. 91

Majority

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Labron & Ives vs. Woram.

Headnote

Where the plaintiffs endorsed a note payable to the order of the defendant, which, as they knfew, wag created and intended to secure the latter for a loan to be made by him to the maker; and the defendant, after making the loan, negotiated the note, putting his own name on the back: held, that though the plaintiffs had paid it, they could not subject the defendant as first endorser.

Had the note not been negotiated, the defendant might have written a guaranty over the plaintiffs’ names, and, in that form, recovered from them the amount of the note.

If the plaintiffs had put their names on the note as ordinary endorsers merely, witnout knowledge of the negotiation between the maker and the defendant, they would have been entitled, it seems, as against the defendant, to all the rights of second endorsers.

Where the judge at the trial submitted a question to the jury which had not been made by the evidence, and the party prejudiced by it, instead of excepting specifically on that ground, asked instructions on another matter, which were not given, the judge instructing the jury differently, whereupon the party excepted, in general terms, “ to the judge's chargeHeld, that the exception could not be construed as reaching beyond the matter which immediately preceded it, and therefore the party was remediless, on error, as to the other point.

His remedy was either by a more specific exception, or a motion in the court below for a new trial.

An exception for the admission of evidence, not sufficient, perse, to make out a defence, but constituting part of a chain of proofs tending to that end, cannot be sustained.

On error from the New-York common pleas. Labron 6f Ives sued Woram in the court below, and on the trial, sought to recover the amount of a promissory note -for #635, dated June 21, 1836, made by A. H. Nichols, payable to the order of the defendant, twelve months after date, and endorsed by the defendant. It was proved by way of

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defence, that Nichols applied to the defendant to borrow money, which the defendant agreed to loan on the note of Nichols, endorsed by the plaintiffs. Nichols thereupon drew the note in question, and, as he testified, inadvertently made it payable to the order of the defendant. He took the note to the plaintiffs and requested them to endorse it, which they did. The note at this time had not been endorsed by the defendant. After the plaintiffs had endorsed, Nichols took the note to the defendant, and passed it to him, on receiving a loan of $600. The defendant afterwards negotiated the note, and on that occasion- put his name upon the back of the note as an endorser. The above testimony, showing the origin and consideration of the note, and how it came to be made payable to the defendant, was objected to, and the objection overruled, to which the plaintiffs excepted. When the note came to maturity, it was protested for non-payment, and was afterwards paid and taken up by the plaintiffs. The defendant gave evidence, which, as he insisted, tended to show that the plaintiffs endorsed the note as sureties for Nichols, to enable him to raise money from the defendant. The judge charged the jury, among other things, that if, from all the circumstances, they were satisfied that there was a mistake made in drawing the note, and that the plaintiffs, when they endorsed, did not intend that the defendant should be responsible to them for the payment of the note, then the plaintiffs had no right to recover. The plaintiffs’ counsel thereupon requested the judge to charge in a particular way in relation to another matter. He declined to charge in that way, and gave a different instruction to the jury. The bill of exceptions states that “ the counsel for the plaintiffs excepted to the judge’s charge.” The jury found a verdict for the defendant, and judgment having been rendered accordingly, the plaintiffs bring error.

A. Thompson, for plaintiffs in error.

I. W. Gerard, for defendant in error.

If the plaintiffs knew of the previous negotiation, and put their names on the note for the purpose of becoming sureties to the defendant for the loan to Nichols, they cannot maintain this action. In that case, the defendant, if he had not negotiated the note, might have written a guaranty over the plaintiffs’ names, and in that form have recovered the amount of the note from them. (Nelson v. Dubois, 13 Johns. R. 175. Campbell v. Butler, 14 id. 349; and see Dean v. Hall, 17 Wendell, 214.) Although the defendant negotiated the note, the plaintiffs have only been compelled, in another form, to answer as sureties for Nichols.

But if the plaintiffs, at the time they endorsed, did not know what use was to be made of the note—if they did no more than put their names on the back of the note made payable to the order of the defendant, then they must be regarded as second endorsers, with all the rights incident to that relation. (Herrick v. Carman, 12 John. R. 159.) Had the note remained in the defendant’s hands, he could not have recovered on it against the plaintiffs; and having endorsed and negotiated it, he would be answerable to the plaintiffs as first endorser—the plaintiffs having been compelled, as second endorsers, to pay the note to a third person.

I agree with the plaintiffs’ counsel, that the evidence was insufficient to defeat the plaintiffs’ action. There was no proof which would authorize the jury to find, that the plaintiffs, at the time they endorsed, knew what use, in particular, Nichols intended to make of the note. They did not know that it was going into the defendant’s hands; and, for aught that appears,, they may have endorsed in the belief, that the note could be of no force as against them, until it had first been endorsed by the payee named in it, and that they would consequently stand as second endorsers. But the plaintiffs have not put themselves in a situation to review that matter on a writ of error. When the judge submitted this part of the case to the jury, as a question for their consideration, the plaintiffs did not except. On the

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contrary, they seemed to acquiesce; for, instead of excepting, they asked the judge to charge in a particular way in relation to another matter. When he declined charging as they desired, on that matter, and gave a different instruction, the plaintiffs excepted. That exception cannot, I think, be fairly construed as extending beyond the matter which immediately preceded it. It does not reach the objection, that the judge left a question to the jury which had not been made by the evidence.

The exceptions to the admission of evidence cannot be maintained. The evidence offered and received, was part of a chain of facts going to make out a good defence. The difficulty was, not that the evidence given was improper, as far as it went, but that it did not go far enough to make out the defendant’s case.

I fear the plaintiffs have suffered in their legal rights, but I see no relief on a writ of error. The remedy was, either by a more pointed exception, or a motion in the court below for a new trial.

Judgment affirmed.