
    John Purchase v. Mahlon Mattison, et al.
    When the drawer of a cheek stops its payment at the bank on which it is drawn, he cannot object to a recovery of its amount by the holder, on the ground that notice of non-payment was not given to him.
    Where in such a case the plaintiff averred in his complaint that actual notice of non-payment was given, and the defendant, in his answer, averred that the defendant had stopped payment of the checks, and proof thereof was given on the trial without objection, the court will not entertain the objection that the plaintiff, instead of averring in his complaint notice of non-payment, should have set forth the facts excusing such notice.
    Under such circumstances, the ease is at most one of mere variance between the complaint and the proof, and as the answer itself shows that the defendants could not have been misled, the variance must be disregarded.
    When the plaintiff, in the complaint, avers facts amounting to an excuse for not giving notice of non-payment, and proves such facts on the trial, he is entitled to recover, although he has also averred notice and gives no proof thereof. This latter averment may, and ought to be regarded as surplusage.
    The rejection of evidence, which, although in its nature competent to establish the fact proposed to be proved, if wholly irrelevant to the issues made by the pleadings, is not a ground of exception.
    Where a plaintiff shows a sufficient legal title in himself to the cause of action in controversy, the non-joinder of a third person as plaintiff who has an interest in the recovery, is waived when not set up by answer or demurrer.
    When a.-witness is cross-examined as to matters collateral to the issues, the cross-examining party is bound by his answers, and is not allowed to contradict in order to discredit him.
    Negotiable paper lent or advanced by the maker for the accommodation of the borrower, but without restriction as to its use, is good in the hands of a transferree, though received in payment of a pre-existing debt.
    A check, payable on demand, advanced to a third person, in consideration of his agreement to do or perform some act beneficial to the maker at a future day, is not an accommodation check, nor without consideration, and it may be collected by the transferree without proof on his part that he paid value therefor, and without proof that such agreement was performed.
    (Before Slosson and Woodruff, J.J.)
    Jan. 14 ;
    March 21, 1857.
    This case came before the General Term upon a verdict taken subject to the opinion of the court on a case to be made, and ordered to be heard in the first instance at the General Term.
    The cause was tried before Oakley, Chief-Justice, and a jury, in November, 1856.
    The action was brought upon two checks drawn by the defendants, as partners, by their firm name of Mattison & Go., upon the Mechanics’ Bank, dated August 13th, 1856, payable to bearer, and each for the sum of two hundred dollars. The complaint, among other things, stated presentment of the checks, non-payment, and notice to the defendants, and also that, before such presentment, the defendants had stopped the payment, and directed the officers of the bank not to pay them.
    The defence set up by the defendants in their answer is, that the checks were obtained from the defendants by one Solinger, .and others, fraudulently, without consideration, and with a preconceived intent on their part to cheat the defendants.
    That the checks were intended to be advances of money under an agreement 'between Solinger and others, and the defendants, entered into, under representations on the part of Solinger and others, wholly false when made, and promises not intended to be performed, and which were not performed by them.
    That the checks were passed by Solinger, and others, -to. one Wheaton, a partner, or interested in business with the plaintiff, and by Wheaton to the plaintiff.
    That neither Wheaton nor the plaintiff paid any value or parted with any consideration whatever for or on the faith of the checks; and that they knew the purposes for which they were given, and that they were being diverted from the purposes for which they were given, and that the checks were founded upon no consideration.
    And that the plaintiff, when he received the checks, knew that the payment thereof had been stopped, and received them in order to recover the amount under the appearance of a Holder in good faith.
    The answer then denies that the plaintiff is the owner and holder of the checks.
    And also denies that the defendants have received notice of non-payment, or that notice of non-payment was given as alleged in the complaint.
    Upon the trial, the plaintiff produced, proved, and read in evidence the checks declared on, and proved that on the morning of the day ensuing their date, they were presented at the bank upon which they were drawn by the said Erastus Wheaton, who received them from Solinger for cattle sold by him the previous week for the plaintiff, and that payment was refused, the answer being, that payment had been stopped, and that on the same day he saw one of the defendants, and was told by him that he had stopped the payment of the -checks.
    The defendants’ counsel, on his cross-examination of Wheaton, addressed questions to him to learn the nature of his connection with the plaintiff, and Wheaton denied that he was in partnership with the plaintiff, but represented that he acted as the plaintiff’s agent.
    And Wheaton testified, on such cross-examination, that he received the checks in part payment of the sum of $915, which was due to the plaintiff for cattle sold to Solinger on the 6th of August, and with $315 cash, also received at the same time. The amount was credited to Solinger on the plaintiff’s book as a payment, pro tanto, of the $915. Upon this proof the plaintiff relies.
    The defendants examined a witness for the purpose of showing the alleged fraud and want, of consideration,..and.h.e stated the particulars of a settlement between the defendants and Solinger on the evening of the 12th of August, and that Solinger wanted an advance of $500, and that the defendants kept a slaughtering-house for the accommodation of butchers who had no slaughterhouse of their own, and that for this privilege the defendants received the feet of cattle slaughtered there, and also the first right to buy the hides and fat.
    That on such settlement, and after the payment of $15.70, there remained due to the defendants $100.
    That Mr. Mattison consented to make the advance “ if Solinger would turn in' the usual amount,” and that the $400, which, together with the balance due, $100, would make up $500 for the next week, was to be given by the defendants next morning in two checks.
    And he states explicitly, “ The consideration for the checks was the agreement of Solinger and others to buy cattle and turn them into the defendants’ place, slaughter them there, and turn in the hides and fat, and the balance due over and above this to the defendants -was to be paid in the coming week.”
    The checks were accordingly given the next morning (the 13th) by the witness, (the defendants’ clerk or agent,) who took them to Solinger and his associates, before referred to.-
    Whether Solinger, and others, purchased any cattle, or how many they purchased and killed at the defendants’ slaughterhouse ; whether any or how much fat, etc., they “ turned in” that week to the defendants does not appear; nor whether any or what balance was due to the defendants at the close of the week’s business was not shown.
    Ho evidence was given that the parties, Solinger and his associates, did not perform the agreement upon which the checks were given—though the defendants gave in evidence that when his clerk or agent took them the checks, it was stated by one of them that he was bargaining—had ten head of cattle in price, that he was in treaty for them.
    In the further progress of the trial the defendants’ counsel put various questions to witnesses whom he called for the purpose of showing that Wheaton was a partner with the plaintiff
    Upon objection by the plaintiff’s counsel the questions were overruled, and the defendants’ counsel excepted.
    
      
      G. Stevenson, for the plaintiff.
    
      John Graham, for the defendants.
   By the Court. Woodruff, J.

The ground of defence we deem it material first to notice, is, that the plaintiff did not prove service of notice of non-payment of the checks, as alleged in the complaint. If we deemed it necessary to rest this objection upon the question whether such notice was proved, it would be only giving a reasonable interpretation to the testimony of the witness Wheaton, to say that his conversation with one of the defendants imported notice of the non-payment of the checks. But it was not necessary to prove notice under the pleadings, for two reasons :—

First. Had the plaintiff simply averred demand, refusal and notice, no actual notice was essential to the plaintiff’s right to recover, if the defendants had themselves stopped the payment of the checks. It is claimed that, under such an averment, the plaintiff was not at liberty to prove facts which dispensed with the necessity of giving notice. Such was not the rule before the Code. (Williams v. Matthews, 3 Cow. 252; Ogden v. Conley, 2 John. 274; Garvey v. Fowler, 4 Sand. 665.) And although it was, in the case last cited, deemed that under the Code a different rule would prevail, so far that, as a rule of pleading, it must be said that all the facts relied upon must be stated; yet, when the excuse for not giving notice is actually stated in the defendants’ answer, viz.: that payment had been stopped, and when evidence to that effect was also given on the trial, without objection, we should be yielding too much to what at most would be, under such circumstances, the merest technicality, if we were to say that the plaintiff was not entitled to recover. In such circumstances it would be a mere case of variance between the complaint and the proof. The answer of the defendants shows that he was not misled thereby. The variance might be either disregarded or the complaint amended. (Code, § 169.)

But, Second. The objection had no weight, because the plaintiff has, in his complaint, averred that the defendants stopped the payment of the checks, and this being both admitted and proved, the necessity of showing notice of presentment ceased, and what is said in the complaint, on the subject of actual notice, may and ought to be disregarded as surplusage.

The plaintiff may say, I rested my claim on the fact that the defendants stopped the payment of the check, and is as well entitled to say this as the defendants are to say he rested his case on an averment of actual notice.

He averred both. If either was proved he is entitled to recover. One is well established; yea, more, it is admitted. It would be trifling with justice to say that he may not have judgment because he did not also prove the other.

The next ground of defence, we think, was wholly unsupported by the evidence. It was proved by the defendants that the consideration for the checks was the agreement of Solinger. and others to buy cattle and turn them into the defendants’ place, slaughter them there, and turn in the hides and fat. This was a sufficient consideration for the checks, and wholly disproves the allegation in the answer that the checks were without consideration. The checks were valid in the hands of Solinger, etc., the moment they were delivered to them.

The evidence fails to establish any fraud. It was not shown that Solinger and others did not perform their agreement; and if it had so appeared, it is not clear but that the very fact that the defendants stopped the payment of the checks prevented such performance.

It is not apparent that it made any difference to the defendants, so long as Solinger performed the agreement, whether the checks were used to pay for the purchases made the previous week or for the week then running.

Uor does the answer place the defence upon the ground of any misappropriation of the checks, or allege that they were to be applied to any specific purpose.

It is not, in this view, necessary to consider how far the acceptance of the checks as cash, in payment for the bill of the previous week, and crediting the same as cash in the plaintiff’s books, made the plaintiff a bona fide holder for value.

Under the facts proved, we have no doubt of his right to recover.

The other exceptions taken by the defendants relate to the exclusion of certain testimony which-the defendants sought to'elicit,'" and which they claim was competent proof that Wheaton and the plaintiff were co-partners.

We are clearly of opinion, that whether the testimony offered was, in its nature, competent or not, the evidence was wholly irrelevant and improper.

The non-joinder of Wheaton was not set up as a defence, by' answer or otherwise, and, therefore, as an objection to the plaintiff’s recovery, was waived.

The fact was wholly without controversy that Wheaton received the checks as the agent of the plaintiff. There was not the slightest proof that either Wheaton or the plaintiff had any .knowledge' of the origin or consideration of the checks, or the terms upon which they were drawn.

Whether, therefore, Wheaton was interested with the plaintiff, as a partner or otherwise, was wholly immaterial to any issue made 'by the pleadings, or to any stats of facts proved on the trial.

E it be suggested that such evidence would tend to contradict Wheaton, the answer is, that it was on the defendants’ cross-examination that Wheaton had denied the partnership, and in that particular the defendants’ examination of Wheaton was to a matter purely collateral to the issue and collateral to the facts which it was material to prove, and which he had proved. E the defendants thought proper to examine Wheaton as to such matters, he was bound by his answers, and could not contradict them for the purpose of discrediting the witness. In no aspect of the case, as the pleadings and proofs stood before the court, was the testimony material and proper.

It must not, however, be understood by this that if the testimony had been relevant, that the questions overruled were competent. We are inclined to concur in the ruling of the Chief-Justice in that respect.

We find no just grounds for interfering with the verdict, and must, therefore, direct that judgment be entered for the plaintiff for the amount of his verdict, with costs.  