Majority
p. 466Nexsen vs. Lyell & Johnson.
Headnote
A. gave his note to B. for money lent, at the same time endorsing and delivering to the latter, as collateral security, the note of C. for a sum exceeding the loan. When C’s. note became due, it was protested for non-payment, and notice given to A.; but it was subsequently delivered up to C. on his paying part thereof and executing to B. a new note for the balance payable at a future day. Held, that B. thereby made the first note of C. his own, and was answerable to A. for the difference between the amount of it and the sum loaned.Assumpsit, tried before Kent, C. Judge, at the New-York circuit, in October 1842. The action was on a promissory note of $1500, made by the defendants on the 21st of September, 1836, and payable to the plaintiff on demand, with interest. The defendants borrowed $1500 of the plaintiff, and gave him the note in question. They also gave him as collateral security for the loan, a note made by one Smedes, for $659,11, and a note for $1254,49, made by Walter Kimball, dated September 17th, 1836, and payable to the defendants six months after date
p. 467
This note the defendants indorsed on passing it to the plaintiff. The Smedes note was paid to the plaintiff. The Kimball note was protested at maturity, in March 1837, and notice duly given to the defendants as endorsers. In April following, Kimball paid the plaintiff $236 towards his note, and gave the plaintiff his two notes, one for $>500, and the other for $529, at four and six months, for the balance due on his original note, which was thereupon delivered up to him by the plaintiff. The judge charged the jury, that the plaintiff had made the Kimball note his own, and the defendants were entitled to set-off the amount against the plaintiff’s claim. The plaintiff excepted. As in this way the plaintiff had been overpaid, the jury found a verdict for the defendants, and certified the balance in their favor. The plaintiff now moved for a new trial on a bill of exceptions.
J S. Bosworth, for the plaintiff.
T. L. Wells, for the defendants.
By the arrangement between the plaintiff and Kimball, the former gave time of payment to the latter—four and six months—for the amount remaining due on his note, and thereby deprived the defendants of the right to take up the note as indorsers, and call upon Kimball, the maker, for payment. There can be no doubt that the plaintiff made the note his own, and must answer to the defendants for the amount. (Southwick v. Sax., 9 Wend. 122 ; Chitty On Bills, 441, 2, ed. of ’39.) The other questions mentioned on the argument, if they amount to anything, are not made by the bill of exceptions.
New trial denied.[1]
(a) (a) See Myers v. Welles § Magee, (ante p. 463.)
Cases cited
- Southwick v. Sax 9 Wend. 122 p. 467