Duncan v. Gösche

The case was one proper to be submitted to the Jury. There were questions of fact to be determined, and it would have been error to have granted the motion made on behalf of the appellants, and *246directed a verdict against the defendants. (Cobb v. Cornish, 16 N. Y. R., 602 ; 4 Bosw., 528 ; 3 Id., 474 ; 2 Id., 365.)

The Jury were properly instructed as to the principles of law applicable to the case. There is no exception to the charge made by the Court. The Jury, among other things, were charged “ that if the plaintiffs received the notes in suit only as further security, that would not discharge French, and they could not recover if the notes xvere without consideration, or were procured by false representations or fraud, or were misapplied.” The testimony clearly warrants the finding of the Jury that the notes were without consideration; they were made in pursuance of the verbal arrangement of June 7th, which became <\ inoperative by the subsequent written agreement of the 20th of June, by the terms of which the payment was to be and actually has been made to another party than he. to whom the notes were given. It is, therefore, unnecessary to examine the question whether or not the transaction, as between the defendants and Jacobsohn, was fraudulent or not. The Jury were warranted by the evidence, in finding that the notes in suit were accepted, discounted and passed to the credit of Mr. Jacobsohn upon s the books of the plaintiffs, only as a further and additional security for the payment of the sum due to them from Jacobsohn. The transaction between the plaintiffs and Jacobsohn was not presented to the Jury by the testimony of either Mr. Sherman, one of the plaintiffs, or of Mr." Jacobsohn, so clear- and unmistakable as to lead me to believe they erred in not finding that the notes were taken as an absolute payment of such an amount of the Jacobsohn indebtedness. Mr. Sherman says: “We consider both Ullman and Jacobsohn liable to us.” Again, qualifying the previous statement (“we took the two notes now in suit as payment ”): “ If I should not realise anything on the notes toe received, I shall hold these shcvres (of stock of the Academy of Music, received prior to the notes and transferred to the plaintiff as collateral for the indebtedness of Jacobsohn) as collateral.” Jacobsohn says, “ The *247understanding was, that if these notes were paid, I was to get back the stock.” Again, “ The understanding was, when I delivered them to Sherman, that when these notes were paid, I was-to get back my stock.” In my opinion the verdict is not against evidence, and the exception taken to the refusal of the Judge to direct a verdict is untenable. The judgment and order refusing a new trial should be affirmed.

It is entirely clear that the notes in suit, were without consideration in Jacobsohn’s hands, at the time he transferred them to the plaintiffs. They were given as the price of a contract which the defendants were to have from Ullman, for the privilege of selling librettos, one year. This contract they never obtained. For the contract which they did receive, they agreed to pay $4,000, and at the time of the trial they had paid the whole $4,000, excepting the sum of $2,000. Jacobsohn, if he had held the notes at their maturity, could not have maintained an action upon them as plaintiff.

As to the terms of the transfer to the plaintiffs, Jacobsohn testified thus: “The understanding was, that if these notes were paid, I was to get back the stock.” * * * “The understanding was, when I delivered them to Sherman that when these notes were paid, I was to get back my stock.”

Watts Sherman testified, “If I should not realize anything on the notes we received, I shall hold these shares as collateral.”

This evidence not only justified, but required a verdict, that the credit which the plaintiff gave for these notes, at the time they were taken, was not unqualified credit, and that they were taken as further security only, not at the plaintiffs’ own risk, and as an absolute payment pro tanto, but as a conditional payment.

*248This was nol\a parting with value in such sense as to entitle the plaintiffs to recover. They did not, by the terms of their contract under which the notes were received, part with any money, other property or security. If, by reason of the transaction, they have lost any security, it is not* because they agreed to surrender any, but because they were parties to a transaction which discharges French, although such a result was not contemplated by them.

The verdict is not contrary to the evidence, and no exception was taken to the charge as made.

The judgment should be affirmed.

Ordered accordingly.