
    Abigail W. Eaton, Administratrix, et al., Respondents, v. John P. Alger et al., Appellants.
    A question decided in this court, after full argument and deliberation, will not be reviewed, unless there has been some plain mistake, as in overlooking some statutory provision or some controlling decision, such as would require the court to grant a re-argument.
    0. delivered to plaintiff a negotiable promissory note, upon his undertaking to collect at his own expense, and upon its collection, pay to 0. $600. —Held, that plaintiff was the party in interest, within section 111 of the Code, and could maintain an action upon the note.
    Evidence of the testimony of a deceased person, upon a former trial, is inadmissible where, if living, he would notbe a competent witness, under section 399 of the Code.
    It is proper to join the representatives of a deceased indorser of a promissory note as defendants with the maker.
    (Argued January 17, 1872;
    decided January 30, 1872.)
    Appeal from judgment of the General Term of the Supreme Court in the third judicial department, affirming judgment entered upon verdict in favor of plaintiffs.
    This is an action upon a promissory note made by the defendant, John P. Alger, and indorsed by Wilks S. Alger, since deceased, to one Ira M. Clark, for the sum of $629.16. The action was originally brought by Josiah Eaton, who having died pending the action, it was duly revived in the name of his personal representatives. The defendants put in separate answers, substantially alleging that the note was void for usury, and also that the then plaintiff, Josiah Eaton, was not the real party in interest, but that the said Ira M. Clark was still the owner of the note. Upon the first trial the plaintiff produced a receipt, and the court ordered a nonsuit, upon the ground that such receipt was conclusive evidence that the title to the note remained in Clark. The nonsuit was affirmed by the General Term of this court, but reversed by the Court of Appeals, which ordered a new trial, on the ground that the receipt furnished no evidence that the title to the note was in Clark. (1 Keyes, 41.)
    
      Upon the second trial at the Circuit, the court excluded all evidence given to show title in Clark, upon the ground that it was immaterial unless accompanied with proof that the note was acquired by Eaton fraudulently or in bad faith. The General Term in the fourth district held that this ruling was erroneous; that the defendant was at liberty to show that the plaintiff was not the true owner; and granted a new trial. (57 Barb., 179.)
    After this reversal, and prior to the third trial, the defendant, Wilks S. Alger, died, and, by consent of the respective counsel, an order was entered reviving the action against his executors.
    The note in suit was made on the day it bears date, and delivered to the said Ira M. Clark in payment of a previous note then overdue. The note was delivered to Eaton upon an agreement that he should collect it at his own risk and expense, and pay Clark $600 when it was collected.
    The court charged that, if this was the agreement between the parties, Eaton had sufficient title to maintain this action; and defendants excepted. The jury rendered a verdict for the plaintiffs.
    
      A. Pond for appellants.
    The writing given back by Eaton to Clark could not be varied by parol evidence. (1 Greenl. on Ev., § 265; Cowen & Hill’s Notes, 1439; Kellogg v. Richards, 14 Wend., 116, 118; Graves v. Friend, 5 Sandf., 568; Wolfe v. Meyers, 3 id., 7, 12, 13; Coon v. Knapp, 4 Seld., 402; Wood v. Whiting, 21 Barb., 190; Niles v. Culver, 8 id., 205, 207, 208; Fitzhugh v. Wiman, 5 Seld., 559, 566; Wadsworth v. Alcott, 2 id., 65, 72; Eggleston v. Knickerbocker, 6 Barb., 458, 466; La Farge v. Rickhert, 5 Wend., 187; Graves v. Dudley, 20 N. Y., 78; Buckley v. Bently, 48 Barb., 283; Dezell v. Odell, 3 Hill, 215 ; Rutgers v. Lucet, 2 Johns. Cas., 92, 96; Goodyear v. Ogden, 4 Hill, 104; Dawson v. Kittle, id., 107; Wescott v. Thompson, 18 N. Y., 363; Morse v. Stone, 5 Barb., 516; Niles v. Richmond, 8 id., 205; Chapman, v. Searle, 3 Pick., 38; Tisloe v. Graeter, 1 Blackf., 353; 
      Curtis v. Wakefield, 15 Pick., 437; Wakefield v. Stedman, 12 id., 562; Langdon v. Langdon, 4 Gray, 186.) An agency to collect negotiable paper vests no title in the agent, and suits must be brought by the party interested, not the agent. ( Gun v. Cantine, 10 Johns., 387; Napier v. McLeod, 9 Wend., 120; Redfield v. Middleton, 7 Bosw., 650; Barbour on Parties, 357, and cases cited; Oakey v. Bend, 3 Edw. Ch., 482; Story’s Eq. Pl., § 219; Code, §§ 111, 113; see opinion of James, J., in this case, 57 Barb., 179; Edwards v. Campbell, 23 Barb., 423; Killmore v. Culver, 24 id., 656; Lounsbury v. Depew, 28 id., 44; Clark v. Phillips, 21 How. Pr., 87; James v. Chalmers, 2 Seld., 209, 215; Hutchins v. Munger, 41 N. Y., 155, 158; Commercial Bank v. Marine Bank, 3 Keyes, 337, 341; Van Rensselaer v. Dennison, 35 N. Y., 402; Garrigue v. Laescher, 3 Bosw., 578; Wood v. Wellington, 30 N. Y., 218, 225; Sanford v. Sanford, in Ct. of App., opinion by Peckham, J.; Langdon v. Langdon, 4 Gray, 186; Seigle v. Thomas, 2 Vesey, 213; Cowing v. Green, 45 Barb., 585, 600.) A delivery which, unexplained, is evidence of transfer, may be shown to be otherwise by the accompanying declarations of the parties. (Burch v. Bennett, 1 Denio, 141; Bank of Monroe v. Culver, 2 Hill, 531.) The evidence of the testimony of W. S. Alger, on a former trial, was improperly rejected. (Parker v. Jackson, 16 Barb., 33; Jackson v. Bailey, 2 Johns., 17; White v. Kibling, 11 id., 128; Jackson v. Lawson, 15 id., 539; Emerson v. Blakely, 5 Abb., N. S., 364; Osborn v. Bell, 5 Denio, 370, 377; Ladue v. Van Vechten, 8 Barb., 666.) No joint judgment could properly be entered against J. P. Alger and the representatives of W. S. Alger. (McVean, v. Scott, 46 Barb., 379, 385; Gardner v. Walker, 22 How., 495; Fine v. Righter, 3 Abb., N. S., 385; and see Voorhis v. Child, 17 N. Y., 354; Union Bank v. Mott, 27 id., 633.) This, then, has been a mis-trial. (Gilbert v. Beach, 16 N. Y., 606.) Plaintiffs must recover on their legal title, and cannot take a new assignment on trial. (Bush v. Tilley, 49 Barb., 599; Peck v. Newton, 46 id., 173; Garrigue v. Loescher, 3 Bosw., 579.)
    
      
      E. Gowen for respondents.
    Evidence of W. S. Alger, on former trial, properly excluded. (Jackson v. Crissey, 3 Wend., 257.) The fact that payment of the consideration of the transfer of note was to depend on a contingency, does not prevent its being a valid sale. (Cummings v. Morris, 25 N. Y., 625.) The holder of a note payable to bearer, or indorsed in blank, may sustain action, although not in fact the owner. (Lovell v. Evertson, 11 Johns., 52; Gage v. Kendall, 15 Wend., 640; 44 N. Y., 228; Brown v. Penfield, 36 id., 473; Williams v. Brown, 2 Keyes, 486.)
   Peckham, J.

This cause has been three times tried at the circuit, and this is its second appearance in this court. The appellants’ counsel now strenuously insists that the late Court of Appeals erred generally in its disposition of the case, and he seeks to have the whole matter reviewed by this court. We have no disposition to review a question in the same case once deliberately decided. Self-respect, as well as a regard for the just influence of this court upon the public, alike forbid it. I do not intend to say that a ease cannot possibly arise where this court would modify or reverse its decision. But I think the court should not reverse, unless there had been some plain mistake, as in overlooking some statutory provision, or some controlling decision of this court; in other words, unless such a case were presented as would require this court to grant a re-argument of a cause. ETo such case is presented where this court simply differs in opinion with a former court, upon a full examination of the merits.

It is urged that oral evidence was not admissible to vary or add to the receipt or writing given by the plaintiff when the note in suit was delivered to him. That question was distinctly decided by this court when the case was here before. (2 Keyes, 41.) It was necessarily decided, and after full examination upon the merits. Whether right or wrong, it is the law of this case.

I do not think the court erred in refusing to nonsuit. The evidence established sufficient title in the plaintiff in the note to enable him to maintain this action.

The receipt did not transfer the title. That was, prima facie, done by the delivery of the note to plaintiff; the note being payable to bearer. That position was not changed or varied by the evidence of the terms upon which he held it.

The evidence substantially established that the payee of the note (Clark) delivered it to the plaintiff upon his undertaking to collect it at his own expense and to pay to Clark upon its collection $600, which was the original amount of the note prior to its renewal.

Here, it will be noted, is no agreement to pay to Clark any part of the proceeds of this note, but simply to pay to him so much money upon the happening of an event which the plaintiff agreed to accomplish.

The note is transferred and delivered to the plaintiff under that contract; and in fulfillment of that contract, he proceeds to its collection. The plaintiff is thus made the party in interest, within the meaning of the Code, so as to enable him to maintain this action. (Cummings v. Morris, 25 N. Y., 625.)

This is not like Langdon v. Langdon (4 Gray, 186). There the note was not negotiable, and no transfer of title in the writing. Here the delivery transferred the title, if so intended between the parties.

Had the plaintiff paid to Clark $100 on the delivery, and promised to pay $500 more upon the collection of the note, which he undertook to accomplish, it would not be denied that he was the party in interest. Does it make any legal difference that he agreed to pay the whole consideration money when the note should be collected %

Again, suppose he had agreed with plaintiff that he should have the whole note if he would proceed to collect it at his own expense and risk, and had delivered the note under that arrangement; confessedly, the plaintiff would then be the party in interest. Does not the like consequence follow, though the plaintiff should agree to pay a certain sum which was less than the face of the note upon its collection ? Is he not then the party in interest in the suit ?

He is sufficiently the party in interest in this case, though he has an interest in but a part of the note, and though Clark be the party in interest in the remaining portion; as no such objection is taken as that Clark is a necessary party.

If the evidence showed that Eaton, the plaintiff, had a mere power, it was a power coupled with an interest in the note; and, hence, he was a party in interest in the note. ‘

This, it must be conceded, is a close case, and not free from doubt. It is on the border line. The objection now is purely technical, as the merits have been fully tried, and no other question remains in the case except as to the title to the note, Ho complaint is made of the admission or rejection of evidence, or of any ruling, except in regard to this question.

There are decisions fully warranting this action, irrespective of the plaintiff’s interest, if he sue with the assent of the owner of the note. But we do not put this decision upon that ground. _ It is well settled that the plaintiff, to maintain this action, since the Code, must be the party in interest, in the same manner he is required to be in any other contract, whether negotiable or not.

It is also urged that the testimony of W. 8. Alger, examined as a witness upon a former trial, who had since died, was improperly rejected at this trial.

The Code, as it stood at this trial, would have prevented the examination of W. S. Alger as a witness, had he been living. (Code, § 111.) As a general rule, the testimony of a deceased person is inadmissible, unless he would have been a competent witness if living. I see no reason for making this an exception.

The court committed no error in the charge as to the nature and character of the receipt or writing taken by Clark upon delivering the note to the plaintiff Eaton. That point was substantially decided when this case was here before. Oral evidence was admitted, upon the ground that the receipt was no evidence as to title in the note.

The charge of the court did not exclude from the jury the consideration of the evidence as to the title other than that of Clark.

The charge as to the onus being upon the defendants to show that the note was not transferred under the agreement testified to by Clark, seems to be a peculiar application of the term. Taking the whole charge together, I understand the court to have left it to the jury to find whether Clark gave the true history of the transaction. If they did, then they should find for the plaintiff. But as he testified positively to his statement, and he knew the facts, it then (that is, after his testimony and the delivery of the note) rested with the defendants to show the case to be otherwise; that aprima facie case was there made. I see no other meaning. It must mean that. In that view I see no error. The proof of loss well warranted secondary proof of the receipt.

It is too late to object here that the representatives of W. S. Alger were improperly joined in this suit with the other defendant, and that no judgment against them can be sustained. The question having never been raised when and where it should have been, this court will not consider it now, even though it be irregular. But it is entirely regular. The one defendant is maker, and the other indorser.

The judgment must be affirmed, with costs.

All concur.

Judgment affirmed.  