Bucyrus Steam Shovel & Dredge Co. v. Meyer — 53 N.Y. St. Rep. 914

Majority

p. 914

The Bucyrus Steam Shovel & Dredge Co., Resp’t, v. Siegmund T. Meyer et al., App’lts.

(Supreme Court, General Term, First Department,

Filed June 30, 1893.)

Headnote

Bills and notes—Accommodation indorsements—Evidence.

In an action on a promissory note defendants alleged that it was indorsed by them for the accommodation of plaintiff, and upon an agreement that they should be protected and indemnified against payment. On the trial the maker’s manager testified that he was sent either by the maker or plaintiff’s president to obtain defendants’ indorsement; that defendants refused the same unless a written request therefor was made by plaintiff’s president, and that he wrote a letter stating that the indorsement was requested by plaintiff. Held, that the question whether the indorsement was for plaintiff’s accommodation should have been submitted to the jury.

Appeal from a judgment entered on the verdict of a jury directed by the court in an action against the indorsers of a promissory note, and from an order denying a motion for a new trial.

Melville H. Regensburger, for app’lts; Howard Mansfield and Albert Symington, for resp’t.

This is an action on a promissory note alleged to have been made by one Simmons,.and indorsed by the defendants Meyer. Simmons did not answer, but the other defendants did, admitting the indorsement, but alleging, by way of defense, that the indorsement was made for the accommodation of the plaintiff, and upon an agreement with it that they would be protected and indemnified against the payment thereof. On the trial, Nathaniel S. Bailey testified that on March 20, 1891, the date of the note, he was the office manager for the maker Simmons; that he was requested either by the president of the plaintiff or the maker, and in the presence of both of them, to take the note in suit to the office of Mr. Meyer, to get his indorsement on it; that he failed to get the indorsement; and that, on his return with the note, he had a conversation with the president of the plaintiff, which he details as follows:

“ I said to him that Mr. Meyer declined to indorse the note. He asked me to make another effort, saying that he wished to have the same indorsement on the paper as he had on the previous paper, so that he could use it 'at his bank. I told him that Mr. Meyer had said: ‘Send that note back to me with a letter stating that Col. Harris [plaintiff’s president] requests my indorsement on the note, and I will place it there.’ * * * I

wrote a letter to Mr. Meyer while Col. Harris was there, in which I stated that this indorsement was at the request of the Bucyrus Company. This is the letter I wrote:

“ ‘45 Broadway, March 20, 1890.

“ ‘Messrs. S. T. Meyer & Son—Dear sir: I enclose herewith a. note dated this day at two months for $3,857.50, which the Bucyrus Steam Shovel & Dredge Company request that you indorse.

“‘Yours, truly, Jas. A. Simmons.

• u <per n. s, Bailey.’

“ The note came back indorsed.”

p. 915

This is substantially all the evidence relating to the procurement of the indorsement. Other questions were asked of Mr. Bailey, and excluded, which we think he should have been allowed to answer, in view of the fact that he went to Meyer with the acquiescence, if not at the request, of Col. Harris, and that it was Bailey’s report of what took place that led to the writing of the Tetter stating that the plaintiff requested the indorsement. He was asked:

“Q. Did Mr. Meyer say anything to you as to the purpose of making any inquiries of you,—as to the purpose or object for which the Bucyrus Steam Shovel & Dredge Company wished the note? Q. Was anything said by Mr. Meyer at that interview as to whether the indorsement was for the accommodation of the Bucyrus Steam Shovel & Dredge Company ? Q. Was anything said at that interview by you to Mr. Meyer as to the use which the note was to be put to ? ”

It may well be that answers to these several inquiries might have thrown some light on the question whether the indorsement was for the accommodation of the maker or the plaintiff; but, without other evidence than that disclosed by the record, the defendants were entitled to have the jury pass upon the question whether they were accommodation indorsers for the plaintiff or not. This right was denied them, the court directing a verdict in favor of the plaintiff. It is quite probable that the suggestion which appears in the record, that the plaintiff surrendered to the maker at the time of receiving the note in suit a note for substantially the same amount, bearing the indorsement of the defendants Meyer, may have had weight with the court in determining that the defendants were not accommodation indorsers for the plaintiff. Their indorsement on the prior note is suggested only, not proved. It is alleged in the complaint, but denied in the answer. The note was not produced on the trial, nor was any competent evidence tending to show an indorsement received or offered. Had there been, the refusal of the court to permit the defendants to testify that they had not indorsed such a note would have constituted error. The judgment should be reversed and a new trial granted, with, costs to the appellants to abide the event.

Van Brunt, P. J., and Follett, J., concur.