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Hutchinson v. Brook.

ALICE HUTCHINSON et al., Appellants, against WILLIAM BROOK et al., Respondents.

(Decided February 31, 1890.)

Plaintiffs, married women, were partners in a business of selling hay and feed which was conducted by their husbands as general agents in such business. Both families resided in the same house. At the rear of their premises was a stable, in which were kept the horses used in their business, and horses of others boarded there. The lease of the house was in the husbands' names. Held, that the mere fact of the general agency of the husbands in the business did not authorize them to contract for plaintiffs for repairs to the house and stable.

APPEAL from a judgment of the District Court in the City of New York, for the Eleventh Judicial District.

The facts are stated in the opinion.

William Arrowsmith, for appellants.

Ira G. Darrin, for respondents.

LARREMORE, Ch. J.-The plaintiffs were partners in trade, carrying on the business of selling hay and feed at 134 Tenth Avenue. Their respective husbands, Samuel Hutchinson and William Hall, were their general agents in the conduct of said business. Both families reside in the house 521 West Twenty-third Street. At the rear of said premises in Twenty-third Street is a stable in which were kept the horses and wagons owned by plaintiffs, and used by them in delivering goods in their business aforesaid, and in which also some other horses belonging to outsiders were boarded. The action was for the price of hay and feed delivered to defendants. The latter conceded the justice and the amount of plaintiffs' claim and relied on a counterclaim, arising out of certain repairs made by defendants to both the house and

Hutchinson v. Brook.

the stable at 521 West Twenty-third Steeet. Plaintiffs claim that they are not liable for such repairs.

The repairs were ordered by said Samuel Hutchinson, and there is a serious conflict of evidence between him and the defendants, as to who he said would be liable. He avers

that they were ordered on the sole responsibility of his lessor, and that he (Hutchinson) had authority to bind the land. lord. This is denied, both by the landlord's agent and by defendants, who say that Hutchinson used language showing the intention of making plaintiffs liable for the bill. The question for us to determine is whether there is sufficient evidence to support the judgment rendered by the justice of the district court, allowing such counterclaim. We cannot discover any. Samuel Hutchinson was confessedly the general agent of plaintiffs in conducting the business at Tenth Avenue, but there is not a scintilla of evidence to show that he had authority to employ on their responsibility a person to make the repairs to the premises in Twentythird Street. Plaintiffs were under no duty to make or pay for these repairs. The husbands were presumably obligated to furnish and keep in repair a family residence, and, moreover, the lease of the whole property was actually taken and held in the husbands' names. The only circumstance that gives the slightest color to the claim that plaintiffs are liable, is that their horses were kept in the stable on the rear of the lot. It does not even appear, for what little such fact, if it exists, might be worth, that the money realized from boarding outsiders' horses was reckoned in as part of the profits of plaintiffs' business. It is not shown that plaintiffs personally gave any order for the work, and there is no proof to support the finding of agency, without which the judg ment against plaintiffs could not have been rendered.

The judgment should be reversed and a new trial ordered, with costs to appellants to abide the event.

BISCHOFF, J., concurred.

Judgment reversed and new trial ordered, with costs to appellants to abide event.

Ilsley v. Smedes.

WILLIAM C. ILSLEY et al., Respondents, against THOMAS M. SMEDES, Appellant.

(Decided February 3d, 1890.)

A provision in a promissory note that, upon the payment of two subsequent notes of the same series, certain stock, which was delivered to the payee as collateral security for all the notes, should be returned, does not prevent its transfer in the usual manner as an independent obligation for the payment of money regardless of such stock; and, therefore, evidence of an alleged conversion of the stock by the payee is inadmissible in an action on the note by a bona fide purchaser before maturity.

APPEAL from a judgment of the General Term of the City Court of New York affirming a judgment of that court entered upon the verdict of a jury and an order denying a motion for a new trial.

The action was brought on a promissory note by an indor. see against the maker. The facts are stated in the opinion. L. H. Andrews, for appellant.

Robert L. Harrison, for respondents.

LARREMORE, Ch. J.-The argument of the learned counsel for the appellant is principally directed to the proposition, that an indorsee of negotiable paper may not recover more than the sum actually advanced by him, on the credit of a note, when there are equities which would serve as defenses between maker and payee. It appears that at least part of the consideration moving from plaintiffs for the note here in suit was the payment of an antecedent debt, owed by the payee to plaintiffs, which plaintiffs accordingly cancelled. But, conceding the abstract principle of law which appellant has fortified by the citation of many authorities, two questions remain for determination: First, is there any evidence

Ilsley v. Smedes.

in the case tending to establish an equitable defense, as between the original parties to this particular note for five hundred dollars? Second, if no such evidence appears in the record, was defendant debarred from offering the same, through any incorrect rulings on the part of the court?

The first of these questions must without hesitation be answered in the negative. The written agreement, under which this note was given, attaches no conditions to the enforcement thereof, although it does prescribe that upon the payment of two subsequent notes of the same series, certain stock, which was delivered to the payee as collateral security for all the notes, should be returned. There is nothing in such agreement to prevent the transfer of this first note for five hundred dollars in the usual manner, as an independent obligation for the payment of money, regardless of said stock.

The second inquiry must also be answered in respondents' favor. All the exclusions of evidence complained of, including that of the judgment roll in the action in Mississippi, related to attempted proofs of the alleged conversion of the collateral. Under our construction of the agreement, the transfer of such stock would not have been any defense to the payment of the first note. By the express terms of the agreement this note was collectible irrespective of any return of collateral, and by the time the second note fell due the payee might have re-possessed himself of such collateral and been in a position to perform the contract. All considerations of such alleged conversion were therefore immaterial in an action upon the first note, and the evidence was properly excluded.

The judgment should be affirmed, with costs.

BOOKSTAVER and BISCHOFF, JJ., concurred.

Judgment affirmed, with costs.

Isaacs v. Jacobs.

JACOB S. ISAACS, Appellant, against LEWIS JACOBS, Respondent.

(Decided February 3d, 1890.)

In an action on a promissory note, oral evidence that the note was given at the time of taking an assignment by the maker of an alleged claim, to the amount of the note, held by the payee against third parties, with the agreement that payment of the note should be enforced only out of the proceeds of such claim, if collected, is admissible; such evidence does not contradict or vary the terms of the note, but goes to show the contract under which it was made.

APPEAL from a judgment of the General Term of the City Court of New York affirming a judgment of that court entered upon a verdict rendered by direction of the court, and an order denying a motion for a new trial.

The facts are stated in the opinion.

Adolph L. Sanger, for appellant.

Henry Grasse, for respondent.

LARREMORE, Ch. J.-The amount claimed to be due by the complaint was admitted, and defendant relied on a counterclaim. It is founded upon a promissory note, made by plaintiff to his own order, and by him indorsed to defendant. Upon the trial the plaintiff, while admitting the making, indorsement, and delivery of the note, offered evidence to prove a contemporaneous understanding between the parties, to the effect that such note was given at the time of the taking of an assignment by plaintiff, of an alleged claim for an amount equal to the face of said note, held by defendant against certain strangers to this action, with the agreement that payment of the note should be enforced only out of the proceeds of such claim, and that it should not be enforced at all unless plaintiff collected something out of such assigned claim. All

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