Howell v. Wright — 4 N.Y. St. Rep. 148

Majority

p. 148

Lonzo M. Howell, App’lt, v. Thomas R. Wright, Resp’t.

(Supreme Court, General Term, Fourth Department,

Filed July, 1886.)

Headnote

Bills and notes—What is a sufficient consideration for a promissory note.

Where the answer in an action brought on a promissory note denied the ownership of the note and. alleged that it was without, consideration and void, and upon the trial the- evidence tended to show that K as agent of one Case received from O. H., who is the payee named in the note in suit, certain notes drawn by defendant, which were then past due and that K as such agent, paid O. fi. fifty per cent of their face valué and received the past due notes. And the defendant’s testimony showed that plaintiff yielding to his request after he (the defendant) “ promised to sign the note for the balance ” took the fifty per cent of the past due notes, and. that after-wards the nóte in suit was given'by defendant to O. H. ih compliance with said promise. Held, there'was sufficient-consideration for the note shown by the evidence.

p. 149

Appeal from a judgment entered upon a verdict rendered at the Oswego circuit, and from an order denying a motion for a new trial made upon the judge’s minutes, upon exceptions, and upon the ground that the verdict was contrary to the evidence.

The action was brought upon a promissory note which read as follows:

“ $1,535.55. Fulton, Oswego County, N. T», \

September 3, 1884. )

Six months after date I promise to pay to O. Howell or bearer fifteen hundred thirty-five and 55-100 dollars at the residence of T. B. Wright, in Oswego Falls, value received with use.”

[Signed] “T. B. WEIGHT.”

The complaint alleged the transfer of the note for value before maturity to the plaintiff and that the plaintiff was the owner. On the trial the note was put in evidence by the plaintiff who then rested. The defendant proved by one Kellogg, that on September 3, 1884, he received from Orlando Howell, who is the payee in the note in suit, three notes drawn by the same T. B. Wright, on which there was then due $3,069.50, and that he paid the said Orlando Howell for them $1,535.55, that he received the three notes and paid the money as the agent of one George M. Case.

The defendant was called as a witness and testified that he had a conversation with Orlando Howell, the payee of the note, on September third and that in that conversation he told said Howell he would sign a note for the other half and that the conversation was prior to his going to Kellogg and receiving the money. That he did not sign the note at that time, but advised him to take Jiis fifty cents on the dollar and “promised to sign the note for the balance,” which note was afterward given in accordance with said promise.

Howe & Rice, for app’lt; S. H. Dada, for resp’t.

When the plaintiff produced the promissory note and read the same in evidence it established prima facie a sufficient consideration. The words, “value received,” are sufficient prima facie to make out a consideration for the promise contained in the note. Hinman v. Moulton, 14 Johns, 466 ; Bank of Troy v. Topping, 9 Wend., 273 .

It is well settled that one promise is a good consideration for another. Briggs v. Tillotson, 8 Johns, 304 . However, they must be concurrent. Cooke v. Oxley, 3 D. & E., 653; Livingston v. Rogers, Coleman & C. Cases, 331. An agree

p. 150

ment to render services or to perform an act is a valid consideration for a promise. Taylor v. Rennie, 35 Barb., 272 . And an injury to one party as well as benefit to another is sufficient consideration for a promise. Miller v. Drake, 1 Caines, 45. However, the benefit to one party or the injury to the other which can avail as a consideration to support an agreement, must be a benefit to which the party is not entitled, except as a consideration of his undertaking, for the injury must be to to the legal rights. Converse v. Kellogg, 7 Barb., 590 ; Beckwith v. Brackett, 97 N. Y., 52 .

The burden was upon the defendant to show that there was not any consideration for the note in suit to overcome a prima facie case made by the production of the note. We think the evidence given upon the trial established the fact that the note in suit was given by the defendant to Howell in pursuance of a request to Howell that he should transfer the notes of $3,000, and that on condition that they were so transferred the defendant would execute the note in suit.

We think the testimony of the defendant, viewed as evidence, or viewed as admissions on the trial, coupled with the note produced and read in evidence, with the surrounding circumstances, satisfactorily indicate that Howell consented to part with the $3,000 notes for fifty cents on a dollar, on condition that he receive the note in suit. Yielding to the request of the defendant, and making a transfer of the $3,000 indebtedness for fifty cents on a dollar to Case, and the reliance upon the promise of the defendant to give his note for the other fifty cents on a dollar, furnished a consideration for the note in suit.

But if we-view the evidence in another light, it seems to justify a conclusion that the defendant undertook and promised, with Orlaijdo Howell, in the event he would take fifty cents on a dollar for the $3,000 of debt from Case, ana transfer that indebtedness to Case (which was long past due), that he, the defendant, undertook, and his own language as he states it upon the stand, “promised to sign the note for the balance.” The note in suit was given on six months time. If it be treated as being given for the balance of the $3,000 debt, then by the terms of the arrangement the defendant secured himself an extension of fifty cents on a dollar of the $3,000 debt for the period of six months. We see no reason why the promise of the defendant, found in the note in suit, should not be upheld.

In Stafford v. Bacon ( 25 Wend., 384 ), it appeared that the defendant had compromised Ms debt by paying one-third thereof, and after the compromise had promised “to pay the balance,” and the court held “that such promise is

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binding, although made without any new consideration moving thereto.”

Certainly there was a precedent duty and obligation on the part of the defendant to pay to his creditor 100 cents on a dollar on the $3,000 debt, and when he requested his creditor to part with that obligation for fifty cents on a dollar, and promised to pay the other fifty cents, and executed a note in pursuance of that promise, the note was supported by a valuable consideration. Section 182 of Daniels on Negotiable Instruments. It is said in the section to which we have referred that a promissory note “ for the payment of a debt discharged in bankruptcy, or barred by the statute of limitations or volmitarily released '* * * would be valid as upon any other valuable consideration.” The foregoing views lead us to a conclusion that the verdict is against the evidence upon the question of consideration for the note in suit. We think there should be a new trial.

Judgment and order reversed and new trial ordered, with costs to abide the event.

Boardmar and Follett, JJ., concur.