
    First National Bank of Salamanca, Plaintiff, v. Abijah Weston, Defendant, Impleaded with Others.
    
      Action by a bank upon an accommodation note—when the question of the bona fieles of the bank is for the jury.
    
    When the court should submit to the jury the questions arising under evidence relating to a plaintiff’s being a holder for. value and in good faith of a note made by a member of a firm, in the firm name, outside of the business of the firm, and as an accommodation note, for the benefit of a third person who received the avails thereof, no part of which ever came to the firm, considered.
    Motion by the plaintiff, the First National Bank of Salamanca, for a new' trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the defendant Abijah Weston, rendered by direction of the court after a trial at the Cattaraugus Trial Term on the 23d day of February, 1897.
    
      Frederick W. Kruse, for the plaintiff.
    
      J. H. Waring, for the defendant.
   Hardin, P. J.:

Plaintiff brings this action to recover upon a promissory note for $700 set out in the complaint, made by George Ramsey and indorsed by Weston Brothers, which was dated December 29, 1891; and was drawn for $700 and given to the bank in renewal of a note representing a previous indebtedness held by it. The indebtedness to the bank originated in 1891, when, according to the testimony, Ramsey carried to the plaintiff’s hank and had discounted a promissory note for §3,000, dated Time 29, 1891, made by Weston Brothers, and indorsed by him and others, which note was renewed from time to time, and sundry payments made thereon, until the indebtedness was reduced to the sum of §700 represented by the last note in the series executed and delivered to and held by the plaintiff at the time of the commencement of the action. At the time the original note was made and discounted by the plaintiff the firm of Weston Brothers, of which the defendant was a member, existed, and it continued until its dissolution on January 5, 1892.

Evidence was given tending to show that the original note was executed in the name of the firm by W. W. Weston; that it was delivered to Ramsey for his accommodation, and that he" carried the same to the plaintiff and had the same discounted for his sole accommodation and benefit. At the time the note was discounted, and prior thereto, Ramsey had an interview with Wellman, then the cashier of the plaintiff, and who died in 1891. When the plaintiff discounted the original note it advanced §3,000, the face value of the note, by issuing its draft on tire Park National Bank, payable to the Hanover National Bank, to which latter hank it transmitted the draft at the request of Ramsey, and the same was charged to the plaintiff and paid by it in the usual course of business.

The case does not clearly show how or in what manner the discount upon the original note was paid.

The plaintiff’s president, Wait, testifies to seeing the original note in the possession of the hank, and that it remained there until it was renewed, and the several renewals following are enumerated by the president, ending with the last renewal note, which is the §700 note mentioned in the complaint upon which the plaintiff seeks to recover.

After the defendant gave evidence tending to show that the original note of §3,000 was made by William Weston in the firm name, outside of the business of the firm, and as an accommodation note for the benefit of Ramsey, and that he received the avails thereof, and that the firm never had any of the proceeds of the note, it was incumbent upon the plaintiff to show that it was a holder for value and in good faith. To meet that burden, the plaintiff gave evidence, so far as it could, of tlie circumstances attending the discount of the original note.

The plaintiff’s banking institution is located at Salamanca, which is some eighteen miles from the residence of Ramsey and some twenty-two miles from the business office of Weston Brothers. There is no evidence that the bank, at the time it discounted the note, had actual knowledge or any express notice of the fact that the original note was made to raise money for the benefit of Ramsey,' and not in the usual course of the business of the firm.

After considering all the evidence that relates to the ownership of the plaintiff, its acquisition of the original note and the advance of the full face value thereof to the party who presented the note to it for discount, which circumstances largely depend upon the testimony of the president of the plaintiff, who was a stockholder in the bank, and the testimony of George Ramsey, and the circumstance that the bank charged eight per cent for discount, that being claimed to be the current price to persons other than customers of the bank, the question was to be determined whether the plaintiff was a holder for value, in good faith, without knowledge or notice that the note taken did not originate in the business of the firm. Impliedly, the trial judge construed the evidence in favor- of the contention of the defendant. Notwithstanding Ramsey had been called as a witness in the first instance by the plaintiff, it was competent for the plaintiff to prove any facts contrary to his testimony. (Coulter v. A. M. U. E. Co., 56 N. Y. 585.) In view of the circumstance that the credibility of the plaintiff’s president was to be determined after considering his interest in the event of the action, and in view of all the circumstances disclosed relating to the plaintiff’s ownership of the original note, it may well be said that a question of fact was presented which should have been passed upon by the jury. If, upon the evidence as it was furnished, the jury was enabled to find that the plaintiff was a tona fide holder, having no knowledge or notice of the diversion of the note, and having advanced the full value therefor, it might have reached a conclusion favorable to the plaintiff. If such conclusion was reached by the jury, then the circumstances attending the renewal of the notes, and the fact that the $700 note on which the plaintiff seeks to recover was a part of the indebtedness represented by the $3,000 note, a conclusion might have been readied by the jury favorable to the plaintiff. (American Ecch. Nat. Bank v. N. Y. B. & P. Co., 74 Hun, 446; S. C. affd., 148 N. Y. 698; Joy v. Diefendorf, 130 id. 6; Cheever v. P., S. & L. E. R. R. Co., 150 id. 59; Flower City Nat. Bank v. Grover, 88 Hun, 4.)

The foregoing views lead to the conclusion that the trial judge fell into an error in refusing to submit the case to the jury. The plaintiff’s exception to such refusal was well taken and a new trial should be ordered.

All concurred, except Follett, J., who concurred in the result.

Plaintiff’s exceptions sustained and a new trial ordered, with costs to the plaintiff to abide the event.  