
    Mary R. Cody, as Executrix, etc., of James A. Carey, Deceased, Appellant, v. Robert H. Hadcox, Respondent.
    
      Action upon a promissory note — defense that it was accommodation paper—cJtarge as to the effect of a letter in regard, to the note.
    
    In an action brought to recover upon a promissory note for §300, bearing date October 4, 1886, made by the defendant payable to the order of the plaintiff’s intestate, it appeared that the defendant was the intestate’s son-in-law; that on September 34, 1886, at which time the intestate held two overdue notes of the defendant, one for §300 and the other for §450, the intestate wrote the defendant the following letter:
    “Vernon Center, September 34, 1886.
    "Rob.—I wish you would get the money on this note as I am short and don’t want to ask Frank for any. I may be over Sunday, but doubtful es I have had a bad boyle on back of neck. If you are coming over S. perhaps the bank would cash it on Sat. * * *.
    “Your Father.
    “P. S. If you get the money on the note I will take care of it at maturity if you can’t.”
    The note read as follows:
    “Vernon, R. Y., September 37, 1886.
    “Four months after date I promise to pay to the order of James A. Carey (the intestate) three hundred (300) dolíais at the Rational Bank of Vernon. Value received, with interest.”
    (Unsigned.)
    (Indorsed.) “ James A. Carey, Vernon Center.”
    
      The defendant received the letter and note, but did nothing about it. October 3, 1886, the defendant visited the intestate and signed the note in suit, which read as follows:
    ‘.'Dollars 300. Vernon, N. Y., Oct. ith, 1886.
    “Three months after date I promise to pay to the order of James A. Carey, three hundred (§300) dollars, at the National Bank of Vernon. Value received, with interest.
    (Signed) “ROBERT H. HADCOX.
    (Indorsed.) “James A. Carey.”
    This note was discounted'at the hank mentioned therein October 6, 1886, and the proceeds of the discount were paid to some person whose identity did not appear. The note was protested for non-payment and was paid February 2, 1887. It was found among the intestate’s papers after his death, which occurred April 18, 1890. The bank at which it was made payable and where it was discounted was the intestate’s bank, not the defendant’s.
    The defendant interposed the defense that the note was made for the intestate’s accommodation without consideration moving to the defendant and that the intestate, having taken it up, the plaintiff could not recover thereon.
    The court, in the body of the charge, left it to the jury to say whether it was an accommodation paper. At the close of the charge, however, the defendant’s counsel requested the court to charge the jury that “if the note in suit was given in pursuance of a letter bearing date September 24, 1886, that the defendant is entitled to a verdict.’’ The court responded, " I will so charge, but I leave it as a question of fact for them to find.”
    
      Held, that the meaning of the court’s response was that he charged the proposition as requested if the jury should find that the note in suit was given pursuant to the letter of September 24, 1886;
    That such charge was erroneous and required the reversal of a judgment entered upon a verdict in favor of the defendant, for the reason that, under the evidence adduced at the trial, the jury might, although they found that the note in suit was given in pursuance of the letter of September 24, 1886, properly have rendered a verdict in favor of the plaintiff.
    Appeal by the plaintiff, Mary R. Cody, as executrix, etc., of James A. Carey, deceased, from a judgment' of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 1st day of November, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 31st day of October, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Matteson & De Angelis, for the appellant.
    
      Charles II. Searle, for the respondent.
   Williams, J.:

The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide event.

The action was upon a promissory note for $300. The defendant was the maker, and the deceased, represented by the plaintiff, the payee. The note was made payable at a bank, and was apparently discounted and subsequently taken up by deceased. It was found among his papers after his death.

The defense was that the note was made for the accommodation of the deceased; that there was no consideration for the defendant’s giving it, and, the deceased having taken it up, his personal representative could not recover the amount thereof from defendant

This question was submitted to the jury as one of fact, and the jury found for the defendant. The evidence was sufficient to support the verdict under the charge as given by the court, and the only suggestion made as a reason for reversal of the judgment is that the charge was wrong, and really left little if anything to the wry-

in order to appreciate this claim we need to state a few facts not in dispute. The deceased had two married daughters. The defendant was the husband of one of the daughters, and was called by deceased, “Rob.” The plaintiff was the other daughter, and her husband was called by deceased, “Frank.” The deceased lived with the plaintiff and her husband at Vernon Center; was postmaster at that village. Defendant lived on a farm near Deansboro, about six and a half miles from Vernon Center. The deceased wrote the defendant a letter, and inclosed in it a note. The letter read as follows (leaving out immaterial words):

“Vernon Center, September 24, 1886.
“ Rob.— I wish you would get the money on this note as I am short and don’t want to ask Frank for any. I may be over Sunday, but doubtful as I have had a badboyle on back of neck. If you are coming over S. perhaps the bank would cash it on Sat. " * *.
“ Your Father.
“ P. S. If yon get the money on the note I will take care of it at maturity if you can’t.”

The note read as follows:

“ Veriton, X. Y., September 27, 1886.
“ Four months after date I promise to pay to the order of James A. Carey three hundred (300) dollars at the Xational Bank of Vernon. Value received, with interest.”
(Unsigned.)
(Indorsed.) “James A. Caret, Vernon Center.”

The defendant received this letter and note, but did not go to Vernon Center to see the deceased until October 3, 1886, which was Sunday, and in the meantime he did nothing about signing or' getting the money on the note. He took the note with him when he went to Vernon Center, and there the note in suit was drawn by deceased, signed by defendant, indorsed by deceased as follows:

“ Dollars 300. Webbon, X. Y., Oct. Mh, 1886.
“ Three months after date I promise to pay to the order of James A. Carey, three hundred ($300) dollars, at the Xational Bank of Vernon. Value received, with interest.
(Signed) “ BOBEET H. HADCOX.
(Indorsed.) “ James A. Caret.”

The note inclosed in the letter and the letter wTere retained by defendant until the trial. The only difference in the two notes was in their dates, September twenty-seventh — October fourth, and time of payment, four months — three months. The note was discounted at the Vernon bank October 6, 1886, and the money was paid to some one, but' there is no direct evidence as to who received it, the bank men who did the business being dead. When the note became due January 7,1887, it was not paid and was protested. It was paid February 2, 1887. Evidently the deceased paid it because it was among his papers after his death, which occurred April 18, 1890. The deceased, at the time of the transaction with reference to this note, was a man of considerable property. He held two notes against the defendant, one for $300, dated February 4, 1886, and another for $450, dated June 29, 1884, and one note against plaintiff’s husband for $933, dated July 21,1885. All these notes were past due at the time the letter was written and the note in suit was given. The defendant could have testified what the note in suit was given for, and whether it was what it purported to be, or was an accommodation note, but was excluded by the death of the deceased under section 829 of the Code of Civil Procedure. The defendant’s wife, who was present when the note was given, heard nothing said by her husband or father on this subject then or at any other time, so far as appears. Other evidence was given on either sidé bearing upon the question at issue, and then the case was submitted to the jury under a charge which was unobjectionable so far as the main body of it was concerned. The only complaint made is as to a request made by defendant’s counsel and the response of the court thereto. In the main charge the trial justice called attention to this letter and the inclosed note, and left the jury to say whether deceased by the letter requested defendant to make the note inclosed for the benefit of deceased, or because he owed deceased, or to enable defendant to get the money and use it himself. He called attention to the giving of the note in suit, October 4, 1886, and left it to the jury to say whether there was a consideration for defendant’s signing the note, or whether it was accommodation paper. So far the case was properly submitted to the jury. The defendant’s counsel, however, was not satisfied with this general submission of the question, and at the close of the main charge requested the court to charge the jury, “if the note in suit was given in pursuance of a letter bearing date September 24, 1886, that the defendant is entitled to a verdict.” The court responded, “ I will so charge, but I leave it as a question of fact for them to find.” And to this there was an exception by the plaintiff’s counsel. The meaning of the response was, and must have been so understood by the jury, I charge the proposition, if the jury find, that the note in suit was given pursuant to the letter of September 24, 1886. The response would have been meaningless upon any other interpretation of the language. The jury could not well fail to find that the note was given pursuant to the letter, and, therefore, the jury were told in effect to render a verdict for the defendant. This was a comprehensive way of disposing of the issue, as to which so much evidence had been taken, and over which such a struggle had been indulged in, and unless it was correct as matter of law, the judgment must be reversed and a new trial ordered.

It is not a case where counsel seek to reverse a judgment by reason of a response that they may be said to have entrapped the trial court into, by making a request. The response was to a request made by the successful party, and to which the appellant’s counsel objected and excepted.

We are now to inquire whether the note in suit having been given pursuant to the letter, the defendant was entitled, as a matter of law, .to a verdict in his favor. If the jury upon any theory of the case might have properly rendered a verdict for the plaintiff, then the response to the request was erroneous. It seems to us the trial judge stated the propositions fairly in the body of his charge as to the letter and the note inclosed therein. The note in suit took the place of the one in the letter. He told the jury in effect to inquire and find whether the note was given for the benefit of the deceased, or for the benefit of the defendant, or upon an indebtedness by defendant to the deceased. The response to the request told the jury in effect that the note, if given pursuant to the letter, was necessarily so given for the benefit of deceased. It must be remembered that there was, no evidence as to what, if any, conversation had passed between the defendant 'and the deceased before the letter was written and the note sent. The jury from all the evidence might infer that there had been some talk on the subject. They were not bound to infer that there had been no such talk. The letter was not inconsistent with the idea that prior thereto defendant had aslced deceased for a loan of $300 and suggested deceased’s getting the money from Frank to loan defendant. Read the letter in this light. “ I wish you would get the money" on this note as I am short, and don’t want to ask Frank for any. * * * If you get the money on the note I will take care of it at maturity if you can’t.” The letter was not inconsistent with the idea that prior thereto the deceased had asked defendant to get some money from the bank on a note to pay upon defendant’s indebtedness to deceased, as he was short and needed some money to use. It will be remembered deceased held a past due note made by defendant for just this amount, $300. He could not get the old note discounted as it was past due. And it may be said as to both these two theories, that the letter by the postscript seems to suggest that, defendant himself would pay the note when due if lié could and deceased would take care of it if defendant could not. This is not quite consistent with the theory that the note was for the accommodation of deceased purely. And again the note when it came due was not paid at once. or taken care of by deceased, but was allowed to go to protest, and to remain unpaid for a month before deceased finally took it up. And, again, if the note was one made purely for the accommodation of deceased, why did he preserve it after he took it up, and why was it found after his death, which occurred a few years later, among the deceased’s papers in an envelope with the other two notes which he held against defendant ? Again, if the note ivas purely for the accommodation of deceased, why did not he make it and have defendant indorse it? He was a man of property, worth more evidently than defendant, and the note was payable and was discounted at deceased’s and not defendant’s bank.

These considerations seem to lead to the conclusion that this note Avas not given for deceased’s accommodation, but in some way for the benefit of defendant, and this would be true if defendant himself had the money on the note at the time, or if it Avas given to get money to apply on defendant’s indebtedness to deceased.

The letter may be construed as consistent with defendant’s theory, that the note was an accommodation note for deceased’s benefit, but it was for the jury to find which was the correct theory of what the note was given for, and not for the court to decide. A verdict supporting either of the three theories, assuming the note Avas given pursuant to the letter, would be supported by the evidence and the inferences which the jury might properly draw from all the circumstances proved in the case.

Apparently there are stronger reasons for believing that one of the plaintiff’s theories was the correct one, as we have suggested, but we do not need to go to that length. It is sufficient that the jury under the evidence and the letter might have found the note given for a good consideration, and not for the accommodation of the deceased.

Our conclusion is, therefore, that the response to the request in question was erroneously made, and that the judgment and order must be reversed.

All concurred.

J udgment and order reversed and new trial ordered, with costs to appellant to abide the event, upon questions of law only, the facts having been examined and no error found therein.  