Eggers v. Philippson — 25 N.Y. St. Rep. 747

Majority

p. 747

Otto J. Eggers et al., Pl’ffs and Resp’ts, v. Paul Philippson, Def’t and App’lt.

(New York Common Pleas, General Term,

Filed June 20, 1889.)

Headnote

Bills and notes—Consideration.

There is not a failure of consideration for the acceptance of a draft' where it appears that the drawers were indebted to the payees for more than the amount of the draft.

Appeal by defendant from several judgments in favor of plaintiffs and against the defendant entered upon verdicts, directed by the trial term of the city court, and affirmed by the general term of that court.

The facts sufficiently appear in the opinion.

Lewis Sanders, for app’lt1 Henry D. Hotchkiss, for resp’ts.

These actions were brought upon four drafts or bills of exchange, drawn at Vera Cruz, Mexico, on the defendant Philippson, to the order of the plaintiffs, for $1,000 each, payable thirty days after sight for value received. The defendant accepted said bills; they were not paid at maturity but were protested, and due notice of dishonor was given.

The defendants on the trial in the court below, and on this appeal, contended that there was a failure of consideration for the acceptance of the drafts, and that such acceptance was on the condition that the plaintiffs accept and pay certain other bills of exchange, and that the bills or drafts in suit were drawn and accepted for the sole purpose of securing plaintiffs against such other acceptance.

In our judgment the testimony entirely fails to establish this contention. On the contrary it shows that the draw

p. 748

ers of the drafts in question were at the time they were sent, indebted to the plaintiffs in an amount exceeding the amount of the drafts. The advice accompanying the drafts cannot be construed into creating the condition contended for by the appellant.

We think there was no error in the court below, and that the judgment should be affirmed.