Murphy v. Carey

— This is an appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion upon the minutes of the court for a new trial. The action was based upon seven promissory notes of which Cary, the defendant, was the maker, and James F. Gillen was the indorser. The appeal is by the maker alone. The facts were substantially these : The plaintiff in this action held a note made by Carey, the defendant, for $5,000, drawn to the order of Michael C. O'Brian, and indorsed by him, and protested for nonpayment. In January, .1891, Murphy was prosécuting an action on behalf of Murphy against Carey, involving other matters, and on the eve of trial a settlement was reached, and Mr. Hewitt, counsel for plaintiff, suggested that the O’Brien note, not then in suit, should be brought into the ■settlement. It was accordingly arranged at that time to give Carey an extension of time for the payment of that five thousand dollar note, upon condition that he would procure an indorser. Thereupon the notes involved in this suit were given, and Gillen became the indorser upon them. The first of the series of notes became due and were protested August 28, 1892. Shortly thereafter Carey sent to Mr. Hewitt, the lawyer, his check for $400. The check was not paid, but Carey afterwards paid $250 in money, which was allowed on the note due August 28th. The only substantial defense urged is that there was a failure to carry out an alleged condition that the old note for $5,000 should be given up or surrendered.

Upon the fact disclosed at the trial no defense to the action was established. The failure to surrender the old note constituted no defense to this action. There was a full and valuable consideration for the notes in suit, and the old note ceased to have any validity or vitality. The plaintiff was entitled to a verdict upon his claim, and the judgment must be affirmed unless some of the exception taken to the rulings on the questions of evidence or to the charge of the judge present error. After a careful examination of the exceptions taken to the charge of the trial judge and his refusals to charge, we find no error, and the judgment and order denying the motion for a new trial upon the minutes of the court should be affirmed, with costs.

All concur.