the cause, the plaintiffs produced in evidence a note in these words: “ $2500. Albany, 13th December. 1828. Ninety days after date, for value received, I promise to pay to the order of Samuel Wilkinson, at the Mechanics’ & Farmers’ Bank, twenty-five hundred dollars. (Signed), Heman Norton.” On which was an endorsement in these words: “ Mr. Olcott. Pay on within seven hundred and fifty dollars. (Signed), S. Wilkinson.” And the mercantile name of the plaintiffs, viz., “ Douglass & Dunn,” also appeared and endorsed on the back of the note. Heman Norton, the maker of the note, testified that he made the note as a member of the firm of Norton, Goodman •& Go., which firm transacted business together as partners; that the note was handed to the defendant to endorse, as an accommodation endorser, for the whole amount of the note; that the defendant declined to endorse for the whole amount but made the endorsement appearing on the note; that the plaintiffs then endorsed the note also as accommodation endorsers, when it was taken to the Mechanics’ & Farmers’ Bank, and there discounted for $750, for the benefit of the firm of Norton, Goodman & Co. who received [432] the money advanced upon the note, and when the note fell due it w'as paid and taken up by the plaintiffs. Protest and notice to defendant were duly proved. By the permission of the judge, the plaintiffs were allowed at the trial, to write over the name of the defendant on the back of the note, the words “ Pay to Douglass & Dunn.” The plaintiffs also produced in evidence, two certified copies of rules of this court, one granted 28th February, 1832, striking out the special counts in-the plaintiff’s original declaration (see 6 Wendell, 637), and giving leave to the plaintiffs to proceed to trial upon a declaration containing a new special count, and the common money counts, and that on the trial they be confined to" the cause of action set forth in the special count; and the other, granted 29th November, 1833, modifying the former rule so that the plaintiffs should be confined, on the trial, to the cause of action.set forth in the special count, to wit, a promissory note for $750; being such either in terms or legal effect. On this evidence the plaintiffs rested. The counsel for the defendant having objected to the introduction in evidence of the note, which was produced on the trial, as variant from that described in the declaration; to the filling up of the endorsement, to the parol proof varying the contract as it appeared in writing; and generally to the whole course of the proceedings on the trial, now moved for a nonsuit, which'was denied by the judge. Whereupon the jury, under the charge of the judge, to which the defendant’s counsel also excepted, found a verdict for the plaintiffs for the $750, with the interest thereof. The defendant now asks for a new trial.
A. Taber, for the defendant.
M. T. Reynolds, for the plaintiff.
By the Court,
Since these parties were before the court on a former occasion ( 6 Wend. 637 ), the declaration has been amended, by striking out the two special counts which it then contained, and inserting a count on the note, describing it as having been made for the sum of [433] $750. On the former trial, the special facts in relation to the making and endorsing of the paper did not appear. It was then regarded as a valid note against the maker for $2500, and as the payee had only transferred a part of the note, without showing that the residue had been satisfied, it w'as held that the legal relation of endorser and endorsees had not been created between the parties. It was said that it would be absurd to give the plaintiffs an action, as endorsees, against the defendant, when they could not maintain an action against Norton, the maker. It was agreed, however, that if only $750 was due on the note at the time of the transfer, the diffi-' culty in the way of a recovery by the plaintiffs would bo removed. That difficulty has now been removed.