
    Mary C. Fairfield, App’lt, v. John H. Feagles, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 13, 1891.)
    
    Bills and notes—Consideration—Charge.
    The action was brought upon a note claimed to have been given to the mother of the parties to induce her not to claim dower, but to take tbe provision made for her by her husband’s will, and plaintiff testified that defendant so informed her after she had taken a transfer of it. Defendant gave evidence to show that it was given to the mother in lieu of support, in contemplation of her leaving his house, and that she changed her mind and remained. The court charged that plaintiff was entitled to recover if defendant produced no defense, and that if the jury found that the note was given under the circumstances sworn to by defendant he would be entitled to a verdict; and refused to charge that if it was given to induce the mother not to claim her thirds that was a good consideration and the note was valid and defendant liable, and also that if defendant, told plaintiff the note was so given it was valid and plaintiff was entitled to a verdict. Held, no error.
    Appeal from judgment entered upon verdict and from an order denying a motion for new trial.
    S. E. Fairfield, for app’lt; Davis & Feagles, for resp’t.
   Van Brunt, P. J.

This action was brought to recover upon a promissory note made by the defendant to his mother, Mrs. Polly Feagles, whereby one year from date he promised to pay to her $412 with interest, which note was duly assigned and transferred by Mrs. Feagles to her daughter Mary C. Feagles, now Mary 0. Fairfield, the plaintiff.

It appeared from the evidence in the case that the father of the plaintiff and defendant, Reuben D. Feagles, left a will in which he bequeathed to the defendant in fee a certain farm and imposed a' charge thereon either to support the wife of the testator or to pay to her a sum of $200 annually.

The testator made certain other provisions for his wife and provided that the said gifts and bequests should be in lieu of dower.

It was claimed upon the part of .the plaintiff that the note in question was given by the defendant in order to induce his mother to take the provision under the will and not elect to take her dower; and the evidence offered to support this claim was'that of the plaintiff herself, who testified that the defendant told her soon after the note was transferred to her that it was given so that the mother would not claim her thirds in his father’s estate.

Upon the part of the defendant evidence was offered tending to show that the mother of the defendant having expressed an intention to leave his house and to go and reside with her son David, made a demand for one or two years’ support, and that the note was given for $412, so that it would, on her disposing of the noté, realize $400, which would be two years’ support prescribed by the will; that the mother, having changed her mind, remained with the defendant and never went away, and told the defendant she had destroyed the note. The principal witness to support this claim was "the wife of the defendant. The defendant went upon the stand and contradicted the testimony of the plaintiff that he had ever made the statement testified to by her.

The case was submitted to the jury by the court with instructions that the making of the note being admitted, and the amount upon it due, the plaintiff was entitled to a verdict if the defendant produced no defense to the instrument; and, after setting forth the evidence to the jury, they were instructed that if they found that the note was given under the facts and circumstances sworn to by the wife of the defendant, then the defendant would be entitled to their verdict.

The plaintiff requested the court to charge that if the jury found that John R Feagles made and executed the note mentioned in the complaint, and that the same was given to the mother of the plaintiff to induce her not to claim her third of her husband’s estate, that is a good consideration and the note is valid and the defendant is liable; and further that if the jury found that the defendant told the plaintiff that this note was given so that she would not claim her thirds, the note is valid and their verdict must be for the plaintiff. These requests were refused, and the jury having returned a verdict in favor of the defendant, from the judgment thereupon entered and from the order denying a motion for new trial this appeal is taken.

It is clear that the proposition last above stated cannot be sustained. because it is entirely immaterial as to what the defendant told the plaintiff in regard to the noté. If the fact was not so, the telling could form no consideration for the note, as there is no evidence that the plaintiff ever parted with anything upon the strength of any such declaration.

The only question which needs consideration is the first request. It seems to us that if the jury had found that the note was given by the defendant upon sufficient consideration it would necessarily follow that the plaintiff must recover. It is true that the learned counsel for the respondent alleges that there were other questions for the jury, but he is studiously silent and utterly fails to point them out. There was no question raised about the transfer of the note to the plaintiff, and the sole defense was that this note was given in lien of support and in contemplation of the mother leaving the defendant’s house and going to live with another son, and she having remained the consideration failed.

But it seems to us this request was unnecessary because the court had already charged that unless the defendant substantiated his claim the plaintiff must recover.

-The court had charged that the making of the note and the amount being admitted the plaintiff was entitled to a verdict unless the defendant produced a defense. And the sole defense he attempted to establish was the fact that it was made in lieu of support, and that because his mother remained with him this consideration failed. The jury must have found that such was the origin of the note; because the last words of the court which ended the charge were substantially that the plaintiff was entitled to recover unless the note was given under the facts and circumstances sworn to by the defendant.

Now no plainer issue could have been presented to the jury, and they having evidently believed the story of the defendant’s wife, found a verdict in his favor.

We do not think under the circumstances that the court, having already submitted the question that unless they believed the story of the defendant’s wife a recovery could be had, was bound to repeat the same proposition in another form.

We think, therefore, that the judgment and order appealed from should be affirmed, with costs.

Daniels, J.

I agree to affirm the judgment and order. For as it is said in the opinion, the jury must have believed the note to have been given as that was stated by the defendant’s wife. And that excluded the possibility that the consideration for it was the widow’s agreement, or consent, not to claim her dower in the land.

O’Brien, J., concurs in the result.  