Leslie v. Bassett

Independently of the question whether the plaintiff became a bona fide holder of the acceptance within the meaning of Coddington v. Bay, 20 Johns. 637, and kindred cases, a proposition not necessary to consider, the verdict was pror perly directed for other reasons. First, the acceptance by the American Exchange of Alcock & Co.’s draft, furnished a sufficient consideration for the acceptance in suit. Dowe v. Shutt, 2 Den. 621; Wooster v. Jenkins, 3 Ib. 187 ; Nantucket Pacific Bk. v. Stebbins, 6 Duer. 341; Newman v. Frost, 52 N. Y. 422. Second, there was no understanding that the specific moneys to be collected by the American Exchange, on the acceptance in suit, were to be applied towards the payment of its acceptance of Alcock & Co.’s draft. The arrangement was that the defendants should accept the draft of the American Exchange so as to put it in funds to pay its acceptance to Alcock & Co. twenty days before its maturity. In other words, so much money was to be placed with the American Exchange, to the credit of the defendants, against which its acceptance, a commission of one per cent and expenses were to be charged.

*408The American Exchange could do what it pleased with the defendants’ acceptance or the money realized from it, so long as the amount was credited on their books. Any use the Exchange might make of either would neither be a misappropriation or diversion of the acceptance or money. They could meet their own acceptance as well with any other money on deposit. The acceptance and its proceeds belonged to the Exchange to do with as it pleased, subject to its liability to make its acceptance to Alcock & Co. good. The defendants evidently trusted the responsibility of the Exchange and its ability to make good its obligation. The transfer of the acceptance by the Exchange to the plaintiff as a payment, in advance, of the interest soon to become due on the $50,000 loan made by her to it, the balance thereof above the interest to apply on the principal, was, therefore, a valid transfer of that instrument by the person having the jus disponendi, and she became the owner and transferee thereof before maturity. Even assuming there had been a failure of or no consideration for the defendants’ acceptance, the rule applicable would be that laid down in the case of The Grocers’ Bank v. Penfield, 69 N. Y. 504, wherein the question arose with respect to the title of the holder of a note made for the accommodation of the payee, and by him endorsed and delivered to the plaintiff solely as collateral security to a precedent debt, without any agreement, extending the time of payment of the debt. • The court said : “ It is universally conceded that the holder of an accommodation note, without restriction as to the mode of using it, may transfer it either in payment or as collateral security for an antecedent debt, and the maker will have no defence. 'It is only where the note has been diverted from the purpose for which it was entrusted to the payee, or some other equity exists in favor of the maker, that it is necessary that the holder should have parted with *409value on the faith of the note in order to cut off such equities of the maker.” Also see Continental Bank v. Townsend, 87 N. Y. 8.

The defendants do not plead diversion of the acceptance, and if they rely upon that defence it must be inferred from their answer, for the intention is not clearly expressed. It charges that the plaintiff received the acceptance with knowledge of the facts, and that she has collected and received out of property and security transferred to her by the American Exchange, sufficient to pay and satisfy all claims and demands she had against it, and ceased to have any right to collect or receive payment of the acceptance sued on, defences they utterly failed to establish. The defendants have called our attention to the case of Bassett, et al., v. Leslie, et al., 123 N. Y. 396, which was an interpleader suit brought by Bassett & Co. against Mrs. Leslie and Alcock & Co., in respect to the acceptance in suit and Alcock & Co.’s claim for the merchandise delivered on the faith of the acceptance of the American Exchange, subsequently dishonored. The court below, on demurrer interposed to the complaint, held, that the action was not maintainable. The general term, upon appeal, sustained the court at special term, and the court of appeals in affirming the courts below, and accepting as it properly did the allegations of the complaint in that suit as true (it having been demurred to), intimated that Mrs. Leslie (the plaintiff here) could not maintain an action on the defendants’ acceptance, it having been diverted, and she not being a bona fide, holder. The intimation was not necessary to a decision of that case, because the court put its affirmance on the ground that the claim of Mrs. Leslie on the acceptance, and of Alcock & Co. for the merchandise sold, were two separate and distinct obligations, and that Bassett & Co. could not be discharged from both on paying one. On the present trial, Bassett & Co., *410on the one hand, and Mrs. Leslie, on the other, have made their allegations and presented their proofs, and it is on these, and not on the undisputed facts alleged in the interpleader suit, that we are called upon to determine the propriety of the rulings made at the trial, and from these we draw the conclusions to which we have before referred. There was no defence to the action, the verdict was properly directed, the exceptions must be overruled, and the plaintiff permitted to enter judgment on the verdict, with costs.

Sedgwick, Ch J., concurred.