Harding v. Barney. It cannot be anything but such a vagary that would infer that there was an entry in the books of the defendants, because a witness had testified that he had once told a person in the defendants' office that another person had told him, at another time, in that office, that there was such entry. I therefore think the request to charge was properly denied. But the actual charge consequent upon such refusal, is open to more criticism. Standing by itself, it is apparently harmless and unobjectionable, for the witness in question did not allege, that on the first answer when he called, the clerk examined the books, although he did say the drafts had been drawn, and it was doubtless a matter for the jury to say how he was to be understood if there was any doubt about his language; but taken in connection with the previous request to charge and the use of the qualification “in terms or words," and the previous part of the sentence, the words how he "is to be understood," is to be qualified by adding, "in respect to such clerks having examined the books." This, undoubtedly, was equivalent to charging them that they were at liberty to construe his testimony into an implied statement that such clerk did examine the books. I do not think there was legally, enough of improbability that the clerk made the statement he did, without looking at the books, as was suggested in the argument, to have warranted the court in instructing the jury that they were at liberty to infer that the witness meant to testify that the clerk did look, at the books, by testifying either that such clerk said the draft was drawn, or that the witness had stated that the clerk had looked at the books. The jury, taking the permission awarded them by the court, may have understood the testimony of the witness as implying, although not in terms stating, that the clerk did inspect said books before he made the answer; that the existence of the entry there was the justification of such answer, and that therefore the draft was bought of the defendants and of no one else. For such a prejudice to the defendants, the only remedy is a new trial. Lewis v. Jones. I concur in thinking, that a new trial should be ordered, with costs to abide the event. Ordered accordingly. GEORGE LEWIS, Plaintiff v. GEORGE JONES, Defendant. SAME V. SAME. 1. In an action by an indorsee against his immediate indorser of a promissory note, or by the payee against the maker, the defendant cannot prove a verbal agreement, cotemporaneous with the indorsing or making of the note, by which the note is not to be paid or become payable until the defendant has realized the amount thereof from specified sources; where the alleged agreement and facts connected with it, do not show a failure of consideration, or that there was no consideration for indorsing or making the note. (Before WOODRUFF, MONCRIEF and ROBERTSON, J. J.) EXCEPTIONS Ordered at the trial to be first heard at the general term, and the entry of judgment in the meantime to be suspended. Two several actions between these parties were tried the same day, and were argued together before the court, in banc. In suit (No. 1) Geo. Jones is sued as indorser of three several notes, made by one Earl W. Johnson, and payable to the defendant's order, and by him indorsed; and in suit (No. 2) as the maker of a note, payable to the plaintiff's order; all of which are alleged to have been delivered by the defendant to the plaintiff, George Lewis; and the first three to have been indorsed to him by the defendant. The defense contained in the answers, is the same in both suits and is, in substance, that the plaintiff and defendant were partners, composing the firm of Lewis & Jones; that said Earl W. Johnson owed them about $13,600, and subsequently failed, "and took the benefit of the bankrupt laws of Massachusetts, of which State he was a resident," and his estate payed only about six cents on the dollar. Lewis v. Jones. It was subsequently discovered that one Simon P. Atkins. held, by assignment from Johnson, a lease, as security for paying the cost of several buildings which Atkins had erected for Johnson, on the demised premises, and on which about $5,000 was due to Atkins. At the request of the plaintiff, and in order to secure the debt due to Lewis & Jones, from Johnson, the defendant entered into an arrangement with Johnson and Atkins, by which Atkins assigned the lease to the defendant, who paid Atkins therefor the $5,000, and who also received from Johnson his three notes for about $4,500 each, at one, two and three years, from May 1, 1856; the defendant to re-assign the lease to Johnson in case he paid said notes at maturity. The plaintiff requested the defendant to enter into said arrangement; to take the assignment of the lease in the defendant's name, and "to give the defendant's notes to said plaintiff, for said plaintiff's interest in said debt due from Johnson-upon this express condition, however, that the said notes were not to be payable, nor was this defendant to be liable to pay the same, unless and until he had received, out of the net rents, issues and profits of said leasehold property, sufficient to pay said notes, so to be given by said defendant, after all other charges, including defendant's aforesaid advance, had been repaid." The note prosecuted in suit (No. 2), is one of the notes so given by the defendant to the plaintiff, and the notes sued upon in suit (No. 1), are renewals of another of the notes so given by the defendant to the plaintiff. These renewal notes were made and given "under the same agreement and consideration," as the original notes. The answers further state, that the defendant "has not received from the said notes given by said Johnson, nor from said leasehold property, nor from its rents, issues and profits, the amount of said notes, and that the same are not now due and payable." At the trial before ROBERTSON, J., April 18, 1860, the defendant offered to prove, as a defense, the facts alleged in the answer. The plaintiff objecting, the court excluded Lewis v. Jones. the evidence, and ordered a verdict in each case for the plaintiff, for the amount claimed therein, to which decisions the defendant excepted. The judge then ordered the questions of law arising on the exceptions, to be heard in the first instance at the general term, and the entry of judgment in the meantime. to be suspended. James W. Gerard, for Defendant. I. The evidence excluded related to the condition on which the notes in question were delivered. Its object was not to vary the notes, as notes in the hands of the plaintiff, but to show in substance, that the plaintiff only held these notes on condition that they were not to take effect until the happening of the events in the answer stated. All facts relating to the execution and delivery of any instrument, tending to show the circumstances under which it was delivered, and the nature and character of the delivery, may always be shown. (Chester v. The Bank of Kingston, 16 New York Rep. 336, 343; Prall v. Hinchman, 6 Duer Rep. 351.) This last case especially applies to the notes in suit No. 1, on which defendant is sued as indorser. (Bowen v. Russell, 13 Pick. 75; Bernhard v. Brunner, 4 Bosw. 528; Goddard v. Cutts, 2 Fairfi. R. 440, 442.) That evidence is now admissible of the intention of parties to a note, in opposition to that raised by the paper itself, (see Moore v. Cross, 19 New York Rep. 127,) where the second indorser of a note was held liable to the payee, on proof that such was the intention of the parties when the note was given. II. The evidence offered, tended to show either an entire or partial failure of consideration to the notes, and as such was admissible. III. The answer set up a perfect equitable defense to the enforcement of these notes by the plaintiff, against the defendant. Lewis v. Jones. Equitable defenses are now admissible. (Code, § 150; Dobson v. Pearce, 2 Kernan, 166; Crary v. Goodman, 2 Kernan, 266.) Peter Y. Cutler, for Plaintiff. I. Parol evidence is inadmissible to contradict or vary the terms of a written instrument. (1 Greenleaf's Evidence, § 275—the reason of the rule is stated in § 281; Durgin v. Ireland, 4 Kernan, 322; 1 Phill. & Amos on Ev. 753; 2 Starkie's Ev. 544, 548; Adams v. Wordley, 1 M. & W. 379, 380; Boorman v. Johntson, 12 Wend. 573.) II. The defendant is estopped from saying that he made any other contract than the absolute one on the face of the notes. (Adams v. Wordley, 1 M. & W. 379, 380; Saunders on Pl. and Ev. 696; Fleming v. Gilbert, 3 Johns. 528.) III. The answer contains no equitable defense. It does not allege fraud. Nor mistake: as, that the notes should have contained the condition, but that it was omitted by mistake, with a prayer that the clause left out should be restored. Nor any other ground of equitable defense. This is easily tested. Suppose the facts stated in this answer to be stated in a bill in equity, what prayer for relief would they sustain? Obviously none. Judgment should be ordered for the plaintiff on the verdicts. BY THE COURT. MONCRIEF, J.-The law presumes in favor of negotiable paper a good consideration until the contrary appears; the notes upon their face express a consideration; the defendant in his answer, expressly and distinctly avers, that the notes were given to him, said plaintiff, "for said plaintiffs' interest in the debt due from Johnson to the defendant and the plaintiff, as copartners." The evidence offered, did not show or tend to show, either an entire or partial failure of consideration. A note which has been executed and delivered, cannot be contradicted, nor can its legal effect be controlled by VOL. VII. 24 |