Olmsted v. Stewart — 13 Johns. 238

Majority

p. 238

Olmsted against C. Stewart.

Headnote

whéíe a.'deii•vers a promis* sory noté to B;, 03 agent of C, and a., at the thate8thepe c?4 8asm thed ae mount of the note, to which statement B,mak|é8 no-objection, and-p., afterwards as1 holder of the note, brings-an action against A , A vriil be allowed to show what-was really due froth him to C , and thus reduce the amount to be recovered, by B., who does not stand ja .the-.sitiiation.of.-aii innocent hold'er óf a nóte, taking it. beforeit becomes, due, in a regiiJar course of business.

IN ERROR, on certiofd/ñ. tó a j.Ustieeis court.

, . _ . . . , . The suit m the. court belojv was op. a promissory note execu- - > - * ted by Olmsted, the defendant, below, payable to Enos Stewart of bearer. C. the • plaintiffibgjow, As agent of E. Stezt* aRr. hud presented An Order on. the., defendant for the amount

p. 239

of an account due E. Stewart, and for which it was alleged that the note in question was given. The defendant produced witnesses to prove that the order on which the’note was obtained was a forgery; but the justice, from his own inspection, decided that the note was genuine. The defendant then offered to prove that when he gave the note he stated to the plaintiff that there was not as much due as he gave the note for; that he had mislaid his papers ; that he would give the note, and let it lie until he could find his papers: and then offered to prove that there were only due E. Stewart 6 dollars and 80 cents, which he had tendered. The evidence was rejected, on the ground that the note became the property of the plaintiff before it fell due; and the justice gave judgment for the plaintiff below for the amount of the note.

The judgment in this case is clearly against evidence, with respect to the handwriting of Enos Stewart to the order. Two witnesses swore that they did not believe it to-be his writing; and that he uniformly wrote his name Steward, instead of Stewart; and the only evidence opposed to this was,, the opinion of the justice from comparing this writing with other writing admitted to be genuine. Whether the judgment ought to be reversed, on this ground, may be questionable. Bui the testimony offered to show that there was not so much due E. Stewart as the amount of the note, ought to have been received. The plaintiff does not stand in the character of an innocent holder of a note, coming into his hands in the regular course of business, before it fell due. He took the note himself, and without making any objections to the statement made by the defendant; he must, therefore, be considered as receiving it subject to the examination to be made by the defendant, as to the state of the accounts between him and E. Stewart. The note must be deemed to have been given with this express understanding and reservation. If the note had not been taken by the plaintiff himself, it would have altered the case. The judgment must, therefore, be reversed.

Judgment reversed-.