Smith v. Weston — 68 N.Y. St. Rep. 513

Majority

p. 513

William H. Smith, App’lt, v. Abijah Weston, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed June 21, 1895.)

Headnote

1. Trial — Bequest to direct verdict.

The effect of a request by both parties for the direction of a verdict is to submit the question of fact for the decision and determination of the court without a jury.

2. Bills and notes — Indorsement by partner.

The indorsement of a note by a partner for the accommodatien of the maker, and not in the course of the firm business, does not render the co-partner liable, if the holder was aware of the facts at the time he took it.

3 Same — Accommodation—Notice.

Taking a note directly from the maker, in renewal of a loan previously made to him, is evidence to the lender that an indorsement thereon is for the maker’s accommodation and without consideration.

Appeal from a judgment, entered on a verdict directed in favor of defendant.

Charles S. Cary, for app’lt; J. H. Waring, for resp’t.

— The action was against the defendants as second indorsers upon a promissory note made by George Van Campen & Sons for the sum of $2,000, payable to the order of J. fe. Van Campen, adminstrator, etc. It was indorsed by the payee, who was a member of the firm of makers, and at his request William W. Weston, one of the firm of Weston Bros., indorsed thereon the firm name of Weston Bros. Abijah Weston alone defended. The indorsement of the defendant’s firm name was for the accommodation of the makers, and not in the course of the partnership business, and was made without the knowledge or consent of the respondent, who was at the time a member of said firm of indorsers. The payee, J. K. Van Campen, after obtaining such indorsement

p. 514

upon the note, transferred the same directly to the plaintiff, in renewal of another promissory note, of a like amount, made by the same makers, and indorsed in like manner. There was no substantial conflict in the evidence, and at its close plaintiff’s counsel stated to the court that in his opinion there was no question for the jury, and he asked for a direction of a verdict for the plaintiff. His motion was denied, and thereupon defendant’s counsel requested the court to direct a verdict for the defendant, which the court did, and the plaintiff duly excepted. The effect of this request by both parties for a direction of a verdict was to submit the questions of fact for thedecision and the determination of the court without a jury. Thompson v. Simpson, 128 N.Y. 283 ; 40 St. Rep. 164 . The firm’s name having been indorsed upon the note by William W. Weston, for the accommodation of the makers, and not in the course of the partnership business, Abijah Weston was not liable upon it, if the plaintiff -was aware of the facts at the time he took it. Taking the note directly from the makers, in renewal of a loan previously made to them, was evidence to the plaintiff that the defendant’s indorsement was for the makers accommodation; and without consideration. National Park Bank v. German-American Mutual Warehouse & Security Co., 116 N. Y. 281 — 293; 26 St. Rep. 675 .

It is claimed by the appellant that the defendant should be es-topped from the interposing the defense, for the reason that he was aware his brother William W. had, on many prior occasions, used the firm name in like manner. There was evidence tending to show that the defendant, William W., had so indorsed the firm name on prior occasions without the consent of the other partners, and that knowledge thereof had from time to time been communicated to Abijah. Abijah testified that he had known that his brother had thus used the firm name, but that, on every occasion, when the information came to him he remonstrated with his brother for so doing, and threatened to dissolve the firm if the practice was persisted in, and that William on every occasion promised that he would not repeat it, but that he violated his promise, and the defendant finally caused a dissolution of the firm in consequence thereof. It was not shown that the plaintiff knew, at the time he discounted the note, of these former indorsements of the defendant’s firm name by William. e plaintiff failed to make a case entitling him to judgment.

The judgment shoud be affirmed.

Bradley and Ward, JJ., concur, Dwight, P. J. not voting.

Cases cited

National Park Bank v. German-American Mutual Warehousing & Security Co. 116 N. Y. 281 N.Y. 1889-10-08 p. 514