Tompkins v. Carner — 27 N.Y. St. Rep. 264

Majority

p. 264

Charles L. Tompkins, Pl’ff, v. William W. Carner et al., Def’ts.

(City Court of New York, Trial Term,

Filed November 25, 1889.)

Headnote

Bills and notes—Acceptor cannot plead defense personal to drawer.

Defendants accepted a draft drawn by one C. and delivered by the latter as an advance payment on a proposed charter party, which was never signed. In an action on the draft, Held, that the failure to sign the charter party -Was no defense; that the right of action for such failure was-personal to the drawer and not available to the defendants as acceptors.

The action is against the defendants as acceptors of a draft drawn by Father Columbia, to his order, for $350, and indorsed by him and delivered to Beach & Miller, and by them transferred to the plaintiff. The drawer has not been sued. The defense is want of consideration, in this, that the draft was given by Father Columbia as an advance payment on a charter of the steamer General Safford that Beach & Miller agreed to sign but did not. The defense might be more appropriately termed “ failure of consideration.”

A. M. Sanders, for pl'ff; G. W. Lockwood, for def’ts.

The draft was delivered by Father Columbia as an advance payment on the proposed charter party. Performance of the contract was entered upon and the amount of the draft earned by such performance. It is immaterial, therefore, so far - as this litigation is concerned, whether the charter was signed or not. The failure to execute it was owing to new conditions sought to be imposed, and not capricious refusal. The defendants, as acceptors, became primarily liable on the draft to the holder thereof, and the failure to sign the charter party is no defense to them.

The case is unlike Bookstaver v. Jayne, 60 N. Y., 146 . There the defendant indorsed a note on conditions personal to himself, which were not performed by the plaintiff. Here the acceptance was unconditional, and as between the drawer and acceptors founded on a valid consideration. If Father Columbia has any grievance, he has his remedy against those at fault; the right of action, if any, is, however, personal to him, and is not available to the defendants as acceptors, for it does not concern them. See Gillespie v. Torrance, 25 N. Y., 306 ; Springer v. Dwyer, 50 id., 19; Lasher v. Williamson, 55 id., 619. It might, perhaps, have been available if Father Columbia had been sued with the acceptors. Springer v. Dwyer, supra. Indeed, Father Columbia has availed himself of this remedy as a personal right, and has an action now pending against Beach and Miller for damages, including the amount of the draft in suit here. In that action his rights may find full protection. The plaintiff is entitled to judgment for $356.12, with costs. _