Cooper v. Hayward

Action on a promissory note executed by the defendants to plaintiff’s intestate. Defense, want of consideration. The defendants had a verdict, and the court granted a new trial on the ground, among others, that the verdict was not justified by the evidence.

The evidence was practically undisputed that the deceased, William H. Hayward, was a partner in business with his father, J. E. Hayward, also since deceased; that the defendant Samuel L., being pressed by his creditors, William H. Hayward, at the solicitation of his mother, and without the knowledge of his father, took the moneys, either of the firm or of his father individually (it is immaterial which), which, were in his possession and control as his father’s agent, and paid the debts of Samuel L., and for the amount thus paid out took defendants’ note, payable to himself individually. It is claimed that this money was intended as a gift by the father to the defendant Samuel, but this claim rests exclusively upon what the mother said and did. But it was not her money, and she had no authority to give it away, and the father never knew of the transaction. Whether the money belonged to the firm or to the father individually, it constituted a consideration for the note; and, as the note was made payable to William H. Hayward, he, if living, could, and his personal representative after his death can, maintain an action on it, although the consideration paid belonged to some one else, and the note was taken for the benefit of that person. The father’s estate has never made any claim to the note.

As the plaintiff did not, after trial, move for judgment notwithstanding the verdict, it is not necessary to consider whether the court ought to have directed a verdict for the plaintiff. It is very clear, however, that, in view of the evidence, the court committed no error in granting a new trial.

Order affirmed.