
    Williams v. Rank.
    
      Thursday, December 7.
    The payee of a note for 500 dollars sold it to a third person, and, at the request of the latter, the maker, who was present, took up the note and executed to him five other notes for 100 dollars each. Held, that in a suit on these new notes the maker could not prove a failure of consideration for the original note.
    APPEAL from the Tippecanoe Circuit Court.
   Smith, J. —

Debt upon a promissory note for the payment of 100 dollars by the defendant to the plaintiff, dated the 17th of November, 1840, and payable twelve months thereafter. Plea, the general issue, with an agreement that the defendant should be at liberty to give any evidence upon the trial which he might legally give under any special pleas. Finding and judgment for the defendant, from which an appeal was prayed for and granted.

After the plaintiff had given the note in evidence, the defendant proved that, in the year 1840, one Van Doren sold to the defendant, Rank, the right to sell patent sawmill dogs in a certain portion of territory in this state, for 750 dollars. In part payment of this sum, Rank gave Van Doren a note for 500 dollars. Van Doren afterwards sold , this note to the plaintiff, Williams, for a valuable consideration. When the latter was negotiating for it, Rank agreed, at the instance of Williams, and for his accommodation, that the note for 500 dollars, if Williams procured it, should be split up into small notes to enable Williams to trade them off. Rank accordingly gave Williams five notes for 100 dollars each for the note the latter had thus purchased of Van Boren, one of which was the note now sued upon. The defendant then gave evidence tending to prove that the patent-right which Rank had purchased of Van Doren was of little or no value, and that, consequently, there had been a failure of consideration for the note given by the former to the latter. This evidence was objected to by the plaintiff, but the objection was overruled.

As there was no other defence made against the note sued upon, it is evident the Court, to whom the cause was submitted by the parties, without a jury, considered the evidence relative to the failure of the consideration of the note given by Rank to Van Boren relevant, and on that ground found for the defendant. In the case of Sloan v. The Richmond Trading, &c., Co., 6 Blackf. 175, it was held by this Court, that if the payor of a note represent to a third person who is about to purchase it of the payee, that the note is good and will be paid, he is precluded from afterwards pleading a failure of the consideration of the note against such third person as assignee. Justice v. Charles, 7 Blackf. 122, was a case very similar to the present. A note given by Justice to one Baldwin, in consideration of a lot of ground, had been assigned by the latter to Charles.' Justice renewed this note by giving one payable directly to Charles, and, in a suit upon the note thus renewed, it was held that the relinquishment by Charles of a right of action against Baldwin on the assignment of the note given up, was a sufficient consideration for the note executed to Charles, and that Justice could not, in a suit against him on the last-mentioned note, plead a want or failure of consideration of the note executed to Baldwin. One of the witnesses on the trial of the present suit stated it was his “impression” that Williams received the 500 dollar note of Van Doren without an assignment, but if this was so, it cannot make any material difference. It may reasonably be presumed that the assignment was waived in consequence of the agreement of the defendant, at the time the plaintiff was negotiating for it, to take it up and execute new notes payable directly to the plaintiff. It would seem useless to make an assignment upon a note which was to be immediately taken up and cancelled. We think, therefore,' as the plaintiff had shown a prima facie right to recover on the note, there was not sufficient evidence to support the judgment for the defendant.

II. W. Chtise, for the appellant.

G. S. Orth, for the appellee.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.  