
    SAMUEL RAYNOR and others, Plaintiffs and Respondents, v. PETER W. HOAGLAND, Defendant and Appellant.
    I. PROMISSORY NOTES, PAYABLE TO ORDER.
    1. TbANSEEB OE, BY DELIVEBY WITHOUT THE PAYEE’S INDOBSEMENT.
    
      Í. The delivery on a valuable consideration amounts to an assignment, and passes the title to the note to the person to whom it is delivered.
    
      a. When sueh transfer will pass the title free from the equities between the maker and pa/yee.
    
    1. It will, when the note thus transferred pursuant to agreement between the maker, payee and transferee to that effect, is delivered to the transferee in renewal of a former note made by the same maker, payable to the same payee, and indorsed by the payee, held by such transferee, and on which the liability of the maker and indorser had. become fixed, and to which neither of them had any defense as against the holder.
    K TRIAL.
    1, Motion to dismiss complaint, effect of making on a particular GROUND.
    
      a. If that ground is untenable, and there is no other ground which is incapable of being obviated, a denial of the motion is ps'oper.
    
    1. Direction of verdict for plaintiff.
    Upon the denial of such a motion, if no other motion or request is made, and no evidence given on the part of the defense, the court can not do otherwise than direct a verdict for the plaintiff.
    Before Freedman, Curtis and Speir, JJ.
    
      Decided Feb. 1, 1875.
    Appeal from judgment.
    The plaintiffs, constituting the firm of Samuel Raynor & Co., complained as follows :
    “That on or about the 11th day of January, in the year 187.0, at the City of Yew York, the defendant made Ms certain promissory note in writing, bearing that date, whereby he promised, three months after the date thereof, to pay to the order of William Wallace Perkins, two thousand dollars for value received, and delivered said note to said William Wallace Perkins, by whom the said note was, before the maturity thereof, indorsed to plaintiffs and delivered to them for value received.
    “That when the said promissory note fell due, to wit, on the 14th day of April, 1870, the defendant agreed with plaintiffs, who were then the lawful holders and owners of said note, to pay to plaintiffs five hundred dollars on account of said note, and to have the note renewed for sixty days for the balance, being fifteen hundred dollars and interest thereon, whereupon defendant, in pursuance of said agreement, paid five hundred dollars to plaintiffs on account of said note for two thousand dollars, and received said note from plaintiffs, and made and delivered to plaintiffs a promissory note in the words and figures following, to wit:
    ‘“$1,518.
    “ ‘ Hew York, April 14th, 1870.
    “ ‘ Sixty days after date I promise to pay to the order of William Wallace Perkins, fifteen hundred and eighteen dollars, value received.
    “‘P. W. HOAGLAND.’
    “That it was a part of the said agreement between plaintiffs and defendant that the said William Wallace Perkins should indorse the said last-mentioned note upon request.
    ‘ ‘ And plaintiffs further say that they have at all times since the delivery of said last-mentioned note to them, as aforesaid, held and owned, and they still own •and hold the same, and that soon after receiving said last-mentioned note from defendant they presented the same to Wm. Wallace Perkins and requested him to indorse the same, but said Perkins refused to do so, and, although frequently requested, has ever since neglected and refused to indorse the same, whereof defendant had notice; by means whereof defendant became liable to pay to plaintiffs the sum of money therein mentioned on the 16th day of June, 1870, when the same became due and payable, but defendant refused, and although often requested, has ever since neglected and refused to pay the same or any part thereof.
    “Wherefore plaintiffs demand judgment,” &c.
    The answer admitted the making of the note and its delivery to William Wallace Perkins, but denied that said Perkins indorsed and delivered said note for value, before maturity, to plaintiffs; and averred that said note was an accommodation note, made solely for the accommodation of said Perkins, and without any consideration passing to the defendant, of which fact plaintiffs had full knowledge.
    Defendant also alleged that at or about the time the said promissory note fell due, to wit, April 14, 1870, he was informed by said Perkins, that he, Perkins, had arranged witli the plaintiffs, that five hundred dollars should be paid on account of said note and a renewal note given for sixty days for the balance, and that, in pursuance of said arrangement, he paid plaintiffs five hundred dollars, and made and delivered to plaintiffs the promissory note set forth in the complaint. But he denied that such payment was made and renewal note given in pursuance of any agreement made by him with the plaintiffs; and he also denied that he at any time agreed with plaintiffs, that said William Wallace Perkins should indorse the note last mentioned.
    At the trial defendant moved for a dismissal of the complaint, on the ground that the plaintiffs had failed to prove title to the note ; that the request to Perkins and his refusal to indorse did not operate as a transfer of the note.
    The motion was denied, and defendant excepted. An abstract of plaintiff’s proof is contained in the opinion.
    The defendant gave no testimony, and the jury, under the direction of the court, rendered a verdict for the plaintiffs for one thousand nine hundred and twenty dollars and fifty-eight cents, to which direction defendant excepted. ' -
    Judgment having been entered on the verdict, the defendant appealed.
    
      Gillet & Stiger, attorneys, and Ira Shafer, of counsel for appellant.
    Prichard, Choate & Smith, attorneys, and Duncan Smith, of counsel for respondents.
   By the Court.—Freedman, J.

The Revised Statutes provide : “All notes in writing, made and signed by any person, whereby he shall promise to pay to any other person or his order, or to the order of any other person, or unto the bearer, any sum of money therein mentioned, shall be due and payable as therein expressed, and shall have the same effect and be negotiable in like manner as inland bills of exchange, according to the custom of merchants” (3 Rev. Stat. 5th ed. 67, § 1).

“The payees and indorsees of every such note payable to them or their order, and the holders of every such note payable to bearer, may maintain actions for the sums of money therein mentioned against the makers and indorsers of the same respectively, in like manner as in cases of inland bills of exchange, and not otherwise” (lb. §4).

According to the custom of merchants, when a notéis made payable to the order of the maker, or of a third person as payee therein named, the name of such maker or payee must appear as the first indorsement.

But in some instances title to a note may be-acquired without such indorsement. The delivery of a promissory note by the payee for a valuable consideration, without indorsement, is an assignment of the note, and conveys all his property therein. In such case the holder stands in the relation of assignee of a chose in action, and not in the relation of an indorsee, and, therefore, holds the note subject to the equities-existing between the original parties (Franklin Bank v. Raymond, 3 Wend. 69). Formerly he could not maintain an action upon it in his own name. But since the Code, the action must be brought in his name, he being the real party in interest (Code § 111; Savage v. Bevier, 12 How. Pr. R. 166; Marine Bank v. Vail, 6 Bosw. 421).

Defendant’s motion for a dismissal of the complaint was made on the sole ground, that the plaintiffs had failed to prove title to the note, or a valid transfer of the same by Perkins to them. This ground being untenable, and there being no other ground incapable of being obviated, the motion was properly denied, and as no other motion or request was made on the ground of the supposed existence of the equities hereinafter referred to, nor any evidence given on the part of the defense, the court could not do otherwise than direct a verdict for the plaintiffs.

I have thus far considered the question presented by defendant’s exception to the refusal to nonsuit, from, the standpoint most favorable to the defendant, namely, upon the assumption that the action was brought solely upon the second note of fifteen hundred and eighteen dollars. But such is not the fact. The complaint set out, and plaintiffs’ proof at the trial established, not only the title of the plaintiffs to, and their right to recover on the said note, as against the only objection which was urged against their right of recovery, but also the facts and circumstances which led the defendant to give, and the plaintiffs to accept, the said note. These facts and circumstances furnished strong additional reasons for defendant’s liability. True, they showed, among other things, that the first note for two thousand dollars had been made and delivered to William Wallace Perkins for his accommodation. But that constituted no available defense on that note as against the plaintiffs, who discounted it for the benefit of Perkins. This was fully conceded before us by the learned counsel of the defendant. Upon the maturity of that note, which had been indorsed by Perkins, the liability of the defendant and of Perkins to the plaintiffs for the amount thereof became fixed. Perkins, at defendant’s request, then arranged that the plaintiffs should receive five hundred dollars on account thereof; that for the balance they should accept a new note made by the defendant to the order of, and indorsed by Perkins, and that they should deliver up the old note. This arrangement was communicated by Perkins to the defendant, and the latter not only agreed to it, but he also carried it into effect, so far as he had the power to do it. He made out a new note for fifteen hundred and eighteen dollars, payable to the order of Perkins, and delivered the same, together with the sum of five hundred dollars, not to Perkins, but at Perkins’ request, to the plaintiffs, and thereupon received from them the two thousand dollar note. Having thus procured a surrender of the evidence of his original indebtedness, and voluntarily bound himself anew directly to the plaintiffs, so far as that was possible for him to do under the arrangement so made, and it being the manifest intention of all the parties when the said arrangement was made, and of the defen dant-when he carried the same into effect, and of the plaintiffs, when they gave up the old note and accepted the new one in lieu thereof, that Perkins should indorse the new note, the defendant can not be permitted to avail himself of the subsequent wrongful refusal of Perkins to indorse. The second note was transferred to the plaintiffs by the joint act of Perkins and the defendant, as an obligation by which the defendant meant to bind himself to the plaintiffs, and, hence, the case is not within the rule which, but for that fact, would constitute the plaintiffs mere assignees, who, as such, hold the note subject to the equities existing between Perkins and the defendant.

The remaining objections and exceptions contained in the case have not been alluded to in the points of the appellant, and, consequently, may be deemed to have been waived.

The judgment should be affirmed, with costs.

Curtis and Speir, JJ., concurred.  