
    Frederick M. Wilson, Resp’t, v. Eli B. Law et al., as Ex’rs of George C. Law, deceased.
    
      (Supreme Court, General Term. Fourth Department,
    
    
      Filed April, 1887.)
    
    1. Promissory note—Action on—Evidence.
    In an action on a promissory note the principal evidence of the plaintiff was to the effect that it was made by the defendant’s testator, but there was sufficient evidence on which to submit to the jury the question whether it was made by him personally or by a person authorized thereto by him. Held, that evidence that the decedent had said that the note was all right was properly admitted. Follett, J , dissents as to the sufficiency of evidence on which to submit to the jury the question whether decedent authorized the note to be signed by another
    2. Same—Production on trial—Raises presumption of ownership before maturity
    
      Held, that production of the note upon the trial by the plaintiff gave rise to the presumption that the plaintiff became the owner of it before maturity and entitled him to stand on that presumption until overcome by proof.
    •3. Same—Declarations of prior owner against validity of title are incompetent
    
      Held, that declarations of the payee of the note made prior to a sale by him were not competent against the title of the buyer of the note or that of his transferee.
    ■4. Same—Who is holder for value
    
      Held, that a transferee of the note who parted with debts and mortgages held against the payee for the note became a holder for value.
    .5. Same—Evidence—Incompetency of.
    It was shown that the maker and payee of the note had a settlement and then the defendants offered to show the amount past due and an arrangement that was made with the maker to take his note for half. Held, that this evidence was properly excluded, the whole title to the note being in the plaintiff, who was a bona fide holder for value. Follett, J , dissenting, held that evidence of the settlement was competent and that evidence of the state of accounts between the parties to the note shortly before its execution, was competent.
    6. Same—Evidence—Competency of, under Code Civil Pro , § 829.
    The payee of the note pledged it to a person who had assumed an indebtedness of his Held, mat this having been paid the title i everted to the payee, and that the transaction having been completed previous to the trial the pledgee of the note was a competent witness (Code Civil Pro , § 829), the plaintiff not holding under the witness, but through the original title of the payee.
    Appeal by defendants from a judgment in Oneida upon a circuit verdict and from an order on minutes.
    
      E. L. Stums, for app’lts; Sayles, Jenkins & Devereux, for resp’t.
   Hardin, P. J.

Plaintiff produced and read in evidence upon the trial a promissory note alleged to have been made by defendants’ testator for $1,100, bearing date April 7, 1874, payable to S. 0. Emory or bearer ten years after date, with interest.

Evidence was given tending so prove that deceased made and delivered the note, and also evidence tending to show that he repeatedly in his life time admitted its validity and that it was “all right.” Defendants gave evidence tending to show its invalidity, and that it was not executed by the deceased.

Whether it was made by deceased by writing his own signature, or whether the signature of deceased was placed upon the note by one authorized by him to sign, were made questions of fact for the jury to pass upon, and they were carefully submitted to the jury and found favorable to the plaintiff.

Inasmuch as there was evidence abundantly to sustain the verdict, we must accept it as final upon these questions of fact. It was not error to allow the jury to inquire and find that the signature of the deceased was placed upon the note by one having authority from him so to do.

Though the principal evidence of the plaintiff was to the effect that the signature -was in the hand-writing of the deceased, it was still the right of the plaintiff to have the jury pass upon the question as to whether the deceased had not authorized another to write his name to the note, and evidence tending to show that the deceased said the note was ‘1 allright ” bore upon that question, and the trial judge committed no error when he presented that aspect of the case to the jury.

Production of the note upon .the trial by the plaintiff gave rise to the presumption that the blaintiff became the owner of the note before its maturity, and entitled him to stand upon that presupmtion until it was sufficiently overcome by proof.

Defendant put upon the stand as a witness Mr. Sayles, and he testified that six or eight years before the trial he purchased the note of the payee, who was at that time indebted to him in various sums, and among other items of indebtedness that he had against Emory, the payee of the note, was a real estate mortgage for $2<>0, and he testified that in pursuance of such purchase and as part payment for the note in suit, he executed a satisfaction-piece and discharged said mortgage.

Mr. Sayles testified that he had the absolute title to the note; that he agreed to account for or pay over any surplus that might remain, if a surplus were had over and above his advances to and debts against Emory.

Thereafter Emory pledged or mortgaged that surplus, if any, to H. S. Willson.

After that state of things existed there was an arrangement entered into between the plaintiff and his father, EL S. Willson, and Mr. Sayles that a transfer of their respective interests and ownerships in the proceeds of the note should be and was made to the plaintiff in this action. When plaintiff took the transfer from Mr. Sayles he agreed to pay “whatever there was” due to Sayles if there was a recovery.

Defendant called as a witness John C. Dorn, and called his attention to an interview he had with Emory in the month of November or December, 1874. Before Mr. Sayles •was sworn, and before H. S. Willson was sworn, the court ruled that the declarations of Emory, the payee and prior holder of the note, were not competent, and defendant excepted.

After the testimony of Sayles and H. S. Wilson had been given by defendant, he again, upon recalling Dorn as a witness, sought to show that when Emory held the interview in the fall of 1874, he offered to sell the note for $350. The court held such evidence was not competent, and defendant excepted; and the defendant offered to show that Emory got his mother to secure a debt to Dorn to get the note out Davis’ possession. That was objected to and the court shut out the evidence.

We think the court committed no error. The declarations of Emory, made long prior to the sale of the note to Sayles, were not competent evidence againt Sayles’ title or the title and ownership of his transferee, the plaintiff. Paige v. Cagwin, 7 Hill, 361: 40 N. Y., 226.

Defendant’s answer contains no affirmative defense. The principal issue upon the trial seemed to be as to the validity of the execution of the note. Defendant called to the stand Sayles and H. S. Willson, and gave their evidence in respect to the acquisition of the note from the payee.

That evidence was dealt with by the trial court as true. Defendant gave it and could not dispute the reliability of the witnesses, and the court in effect held that the plaintiff had acquired title to the note before its maturity and stood in the attitude of a bona fide holder.

When Sayles parted with the mortgage and debts he held against Emory for the note, he became a holder before the maturity of the note for value. Phœnix Ins. Co v. Church, 81 N. Y., 218.

In that case plaintiff was not abona fide holder for value, so as to shut out the defense that the note was wrongfully directed by the payee, as plaintiff had surrendered nothing of value in delivery of a dishonored, worthless check.

The case of Huff v. Wagner (63 Barb., 215), is unlike the one now before the court, as in that case there was a defense set up to the effect ‘1 that the note was obtained from the maker ” by means of fraud and false and fraudulent representations. It was held that the extent of value parted with by plaintiff, and the circumstances under which he bought the note, might be shown.

It appeared by the evidence that Emory and the maker of the note had a settlement in the spring of 1874, and then defendants offered to show “ the amount that was past due and the arrangement that was made with Mr. Law to take his note for half.” This was excluded and defendant excepted.

As the case stood at that time the court held that the whole title to the note was in the plaintiff, and that he stood in the position of a bona fide holder before maturity, and that the evidence was inadmissible. We think no error was committed by the ruling made.

It seems by the evidence that Mary Barnes held the note as security for an indebtedness she had assumed of Emory, but that debt and liability had been paid and the note reverted to Emory, he never having parted title to it to Mrs. Barnes. That transaction was long before the transfer to Mr. Sayles. Mrs. Barnes at the time of the trial had no interest in or title to the note. She was, therefore, a competent witness. Section 829. Sayles and the plaintiff held the note through the original title and ownership of Emory. The plaintiff did not hold under any title or interest of Mary Barnes. It was proper to receive her evidence.

The case of Pope v. Allen (90 N. Y., 298,) is quite unlike this one. There the evidence was properly excluded, as the-plaintiff held title to real estate under Pope and Rogers,, and they were dead.

Defendant offered two chattel mortgages made by Emory to deceased, one dated September 18, 1866, and the other dated the 30th of November, 1867, and a receipt dated February 28, 1874, and a note for $221, dated February 24, 1874, given by Emory. They were excluded. They were not connected with the note of April, 1874, in suit, and were therefore immaterial. They had no legitimate bearing upon the issues as to the note in suit, and were therefore properly excluded.

Having found no exception in the course of the trial presenting any prejudicial error, the verdict must be allowed to stand.

Judgment and order affirmed, with costs.

Boardman, J., concurs; Follett, J., writes for reversal.

Follett, J.

(dissenting).—This action is upon a note of which the following is a copy:

“$1,100.
Bartlett, April 7, 1874.
“Ten years from date, for value received, I promise to pay S. C. Emory, or bearer, the sum of eleven hundred dollars, with use.
G. W. LAW.”

When G-. W. Law, the alleged maker, died, does not appear, but it appears that this action was begun against his executors December 13, 1884.

The principal issue tried before the jury was, whether the signature was genuine or forged. Upon this issue it was competent for the defendants to prove, that the maker was not indebted to the payee at the date of the note, and that there were no dealings between the parties out of which the note probably could have arisen.

February 24, 1874 (forty-two days before this peculiar note bears date), Emory gave Law his note for $221, due one year after date, with interest.

August 28, 1878, Law recovered a judgment on this note. The defendants offered this note in evidence, but it was rejected. This was error. It was competent for the defendants to show that forty-two days before the date of the note sued upon, Emory was indebted to Law, and that subsequently a judgment was recovered upon the note. From these facts some pertinent inferences might have been drawn by the jury, bearing upon the probability of the genuineness of the questioned note.

It also appears that thirty-eight days before the date of the note in suit, the parties had a full settlement, which fact it was competent for the defendants to prove, as bearing upon the question as to whether G. W. Law signed the note, and its exclusion was error.

As before stated, the evidence relates almost wholly to the question of the genuineness of the signature to the note, and there is not a suggestion in the case that the testator authorized any person to sign the note for him; there is no evidence that the testator was accustomed, or that he ever deputed another to sign his name, or that he was at any time unable to sign his own name. On the contrary, the evidence is wholly hostile to the idea that the testator authorized another to sign the note for him.

If it was signed by another, why should the signature have been so like the genuine signature of the testator' The direction of the court that the jury might find the note was signed by another person by the authority of the testator, is without the slightest support from the evidence, was misleading and erroneous.

For these errors a new trial should be granted, with costs to abide the event,.  