101 N.Y. 554, Schmittler v. Simon

Citation:101 N.Y. 554
Party Name:MARY SCHMITTLER, Appellant, v. ADAM SIMON, Respondent.
Case Date:March 02, 1886
Court:New York Court of Appeals

Page 554

101 N.Y. 554

MARY SCHMITTLER, Appellant,

v.

ADAM SIMON, Respondent.

New York Court of Appeal

March 2, 1886

Argued January 22, 1886.

COUNSEL

Wm. W. Jenks for appellant. The instrument sued upon is a bill of exchange. (Pothier, Blackstone, Kent, Edwards and Story; Luff v. Pope, 5 Hill, 416; 1 Pars. on Notes and Bills, 323; Convren v. Luddy, 31 Penn. St. 509; 6 B. Monr. 179; 4 Den. 358; 2 Wheat. 385; 3 Shepl. 131; 9 Watts, 359; Byles on Bills, 245; Mich. Bk. v. Stratton, 3 Abb. Ct. App. Dec. 270; Story on Bills, chap. 5, p. 184; Laing v. Barclay, 1 Barn. & Cress. 398.) The word 'executor, ' both in the body of the instrument and after the signature of the acceptor, is

Page 555

simply descriptio personae, and as the addition did not bind a principal, the acceptor is individually bound. (Connor v. Clark, 12 Cal. 168; Hill v. Bannister, 8 Cow. 31; Foster v. Fuller, 6 Mass. 758; Thatcher v. Dinsmore, 5 id. 299; Robertson v. Banks, 1 S. & M. 666; Cornthwaite v. First Nat. Bk., 57 Ind. 265; Mills v. Kuykendall, 2 Blackf. 47; Carter v. Thomas, 3 id. 213; Ranney v. Adm. of Johnson, 8 Wend. 500; Ferrin v. Myrick, 41 N.Y. 316; McEldery & Chapman v. McKenzie, 2 Port. [ Ala.] 33; Windom v. Bleecker, 52 Ill. 342; Davis v. French, 20 Me. 21; Tryon v. Oxley, 3 Iowa, 289; Austin v. Monroe, 47 N.Y. 360; Pars. on Notes and Bills, 161; Story on Bills, § 47; Story on Prom. Notes, § 63; Tasso v. Church, 4 W. & S. 346.) Admitting that the consideration of the instrument sued upon is a debt of a testator represented by the defendant, and a legacy or a portion to be due an heir in either case, its acceptance is an admission of assets, and the forbearance to sue would make it a valid individual obligation. (Johnson v. Gardiner, 10 Mod. 254; Bradley v. Heath, 3 Sim. 543; Davis v. Reyners, 2 Lev. 3; Childs v. Morrison, 2 Brod. & Bing. 462; Liverpool Borough Bk. v. Walker, Zex & Jones, 29; Liskman v. Allen, 3 E. D. Smith, 564.) The promise to pay interest upon the draft sued upon made it, under any contingency, a personal obligation of defendant. (Sims v. Stillwel, 3 How. [ Miss.] 176; Powell v. Graham, 7 Taunt. 581; Childs v. Morris, 6 Eng. C. L. 200; Chitty on Cont. 84; Davis v. Reyners, 2 Lev. 3.) The direction at the close of the instrument 'and charge the amount against me, and of my mother's estate, ' is directory between drawer and drawee as to where amount paid is to be charged. (Chitty on Bills, 162; Bouv. L. D., tit. Bills of Exch.; Byles on Bills, 86; McLeod v. Snee, 2 Strange, 762; Coursen v. Ledder, 31 Penn. St. 506; Kelly v. Mayor of Brooklyn, 4 Hill, 263; 1 Daniels on Neg. Instr., § 51; Hollister v. Hopkins, 13 Hun, 210; Munger v. Shannon, 61 N.Y. 251; Ridman v. Adams, 51 Me. 429; 1 Edw. on Notes and Bills, § 158.)

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Joseph B. Reilly for respondent. Defendant's acceptance of the draft in the capacity of executor of the estate does not bind him individually. (Bk. of Troy v. Topping, 9 Wend. 273; Story on Notes, § 63; Story on Bills, § 74; Edwards on Bills, 79; 1 Daniels on Neg. Inst., § § 255, 263; Lake v. Trustees, etc., 4 Den. 520; Kingsberry v. Pettis Co., 48 Mo. 207; Tooker v. Arnoux, 76 N.Y. 397.) The draft in suit was non-negotiable, as appears upon its face, it was chargeable against a certain fund, that is, the interest of the drawer in his mother's estate; hence, the plaintiff is in no better condition than the payee named therein. (Cook v. Satterlee, 6 Cow. 108; Skilen v. Richmond, 48 Barb. 428; 1 Daniels on Neg. Inst., § 263; Story on Prom. Notes, § 63; 1 Pars. B. & N. 161.) It can be only construed as an equitable assignment of sufficient of that interest to pay the amount set forth in the instrument. (Wells v. Williams, 39 Barb. 567; Richardson v. Rust, 9 Paige, 243; Vreeland v. Blunt, 6 Barb. 182.) When a party accepts a draft of this character in a representative capacity, and such fact be known, then he is only liable in such representative capacity. (44 N.Y. 395; 15 Johns. 1; 6 How. Pr. 1; 17 Johns. 301; 1 Cow. 514; Brockway v. Allen, 17 Wend. 40; Seaber v. Hawkes, 5 Moore & Payne, 549.) The only construction that can be given to the words in the draft 'and of my mother's estate, ' is that the drawer directed the executor to pay $900 of the estate of his mother. (Gallery v. Cushman, 14 Barb. 186; Tooker v. Arnoux, 76 N.Y. 397; Schoonmaker v. Roosa, 17 Johns. 300.) It is not a positive promise to pay; at the most it is a conditional promise, dependent upon the...

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