
    Frank Leslie, Resp’t, v. George F. Bassett et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed January 20, 1892.)
    
    Bills and Notes—Accepted draet—Parties.
    Defendants accepted a draft drawn on them by the American Exchange to provide the latter with funds to meet a draft drawn on them by A & Co., and accepted by them as an accommodation to defendants, and said draft was transferred by the Exchange to plaintiff, before maturity, in payment of advance of interest to accrue on an antecedent debt. The goods represented by the draft were ordered by defendants of A & Co., and shipped by the latter in Liverpool to New York, the Exchange delivering the bills of lading by its agent in New York to defendants, on receiving said draft, on the 10th of April. Two days later the Exchange was declared insolvent and a receiver appointed. Held, that neither the Exchange nor the plaintiff as transferee could maintain an action on the draft.
    Appeal from judgment of the New York superior court, general term, affirming a verdict in favor of the plaintiff.
    
      Joseph A. Shoudy, for app’lts;. Charles M Rushmore, for resp’t.
    
      
       Reversing 39 St. Rep., 146.
    
   Andrews, J.

According to the settled law of this state, as established in Coddington v. Bay, 20 Johns., 637, and reaffirmed in subsequent cases, the plaintiff having taken the draft as security for or in nominal payment of interest to accrue on an antecedent debt, it was subject in her hands to any defenses which would have been available to the defendants in case the draft had not been transferred and the action had been brought by the drawees against the defendants as acceptors. The plaintiff on receiving the draft surrendered no securities, extinguished no liability for the principal or interest of her debt against the Exchange, and the most favorable construction of the transaction in her behalf is that she received the draft as conditional payment of the interest to accrue on the loan. It cannot be doubted that, in case the draft was not paid, she would have recourse on her original obligation against the Exchange to recover the interest for which the draft was taken in nominal payment Se Phoenix Ins. Co. v. Church, 81 N. Y., 218, and cases cited.

The plaintiff stands upon the right of the Exchange, and the right of the latter to recover if it still held the-draft and had' brought the action is, in this case, a test of the plaintiff’s rights. The real consideration of the draft in suit was the obligation assumed by the Exchange to accept and pay the drafts of Alcock & Co., drawn upon it for goods purchased by Bassett & Co. from Alcock & Co. Bassett & Co. desired credit for purchases to be made by the firm from Alcock & Co. The Exchange agreed with Bassett & Co. to accept the drafts by Alcock & Co. upon its London house at ninety days, drawn for goods sold by Alcock & Co. to Bassett & Co., of New York. In order to put the Exchange in funds to meet its acceptances of the drafts of Alcock & Co., Bassett & Co. agreed to accept drafts drawn by the Exchange upon Bassett & Co. for equivalent amounts payable in New York, to mature twenty days before the drafts which it should accept drawn by Alcock & Co. The control which was retained by the Exchange over the goods was intended as additional security for its liability on its acceptances.

The Exchange was in no real sense the vendor of the goods. The goods represented by the draft in question were ordered by Bassett & Co. from Alcock & Co., were sent by the latter firm to the agent of Bassett & Co. in Liverpool, and were shipped to New , York under bills of lading running in the name of Bassett & Co., which were attached to the draft drawn by Alcock & Co. upon the,Exchange. , The possession by the Exchange of the bills of lading enabled it to control the delivery of the goods in New York, and on arrival there the bills of lading were delivered to Bassett & Co. by the New York agent of the Exchange on receiving the draft in suit, together with a banker’s trust receipt to secure the application of the proceeds of the goods to the payment of the draft. Bassett & Co. have at all times, and are now, liable as vendees of the goods to Alcock & Co.

There was undoubtedly a good consideration for the draft in question when it was drawn. But if the consideration has failed, the Exchange could not enforce the draft, nor can the plaintiff, who has succeeded to its rights, and stands in its shoes.

The evidence shows that the draft was transferred by the Exchange to the plaintiff on the 9th or 10th of April, 1888, within one or two days after its date. On the 12th of April the Exchange was declared insolvent and a receiver was appointed. The evidence tends to show that it is hopelessly bankrupt Its debts are unpaid. The plaintiff has received not to exceed $7,000 or $8,000 on her loan of $50,000, and this sum has not been realized out of the assets of the Exchange, but out of individual securities of Grillig, assigned by him to the plaintiff.

Bassett & Co., as has been sáid, are still liable to Alcock & Co. for the price of the goods, and if liable on the draft in suit will be compelled to pay for the goods twice over, leaving them as their only recourse a worthless claim against a bankrupt concern.

Under the circumstances disclosed by the evidence we are of opinion that neither the Exchange nor its successor could maintain an action on the draft, and that the plaintiff as transferee is in no better position.

We deem it unnecessary to consider whether the transfer of the draft to apply upon an antecedent debt of the plaintiff against the Exchange was a wrongful diversion of the draft from the purpose for which it was to be used. It is sufficient that the consideration has failed, and this constitutes a good defense to the action.

The court therefore erred in directing a verdict for the plaintiff, and for this error there should be a reversal of the judgment.

Judgment reversed and new trial granted, costs to abide event

All concur.  