Braman v. Hess — 13 Johns. 52

Majority

p. 52

Braman against Hess.

Headnote

Where on the endorsement of a note, the consideration passing between the endorsee and his endorser is not equal to the amount of the note, the endorsee, in an action against the endorser can only recover the consideration which he has actually paid.

THIS was án action of assumpsit by the endorsee against the endorser of a promissory note;; the cause, was tried at the Mont* gomery circuit, irj 1815,. before Mr. J. Yates. •

The note was for 343 dollars and 25 cents, and was 'dráwn by one Edward Williams, j.un., .in favour of the' defendant and ■John Yerdan, and by them endorsed to the plaintiff. The defendan-t offered to show, in mitigation of damages, that the trans- ' fer of the note, by the endorser to the endorsee, was made on ' ■ ¿ ■ X . ' , . . ' .. . , a discount of .90 dollars | but the judge rejected the.evidencej and a verdict was given for the plaintiff for the full amount of the note, with interest.

The defendant .moved for a new trial, and the casé was sub? rnitted without argument, .

The evidence offered on the párt of the defendant ought to have been received, according to the principle which governed the case of Wiffin v. Roberts, (1 Esp. Cas. 261.,) and. which was adopted and sanctioned by this; court in Brown v. Mott, ( 7 Johns. Rep. 361 .) This suit'is by the endorsee-against his immediate endorser. And in the case of Livingston v. Hastie & Patrick, ( 2 Caines’ Rep. 248 .,) it is explicitly laid down, that the payee will be allowed, against the drawer, and the endorsee against his immediate endorser, to show what was the real consideration passing between them. If this suit was by the endorsee against the maker of the note, it would not-lie in his mouth to, say the plaintiff purchased it at a discount; but as the defendant was the immediate endorser of the plaintiff, the proof offered that the note was purchased for 90 dollars, under the face Of it,, should have been admitted. A Hew trial must, therefore, be granted, unless the plaintiff wilif pemit the 90 cjollais, and the interest which hag been vecovered fhcreon,