Burr v. Harty

• Citation: 52 A. 724,75 Conn. 127
• Parties: BURR et al. v. HARTY et ux.
• Decision Date: 18 July 1902
• Court: Supreme Court of Connecticut

52 A. 724
75 Conn. 127

BURR et al.
v.
HARTY et ux.

Supreme Court of Errors of Connecticut.

July 18, 1902.

Appeal from superior court, Fairfield county; Silas A. Robinson, Judge.

Action on a note by Burr & Knapp against William Harty and wife. From a judgment for defendants and an order denying a new trial, plaintiffs appeal. Affirmed.

John C. Chamberlain, for appellants.

Robert E. De Forest and Alfred B. Beers, for appellees.

HAMERSLEY, J. This action is brought by the plaintiffs, as indorsees of the payee of a promissory note dated February 9, 1900, and payable to the order of one Charles B. Marsh, against the defendants, as makers. The note was secured by a mortgage on land, and appeared on its face to be a mortgage note. The defense is payment to said Marsh while he was owner of the note. It is conceded that payment was made to Marsh on May 31, 1900, who then released the mortgage to the defendants, vesting in them a clear title to the land mortgaged, and shortly after gave them a receipt for the payment made. The plaintiffs claim that at the time of this payment they, and not Marsh, were owners of the note; that on the preceding April 20th Marsh indorsed the note to them, and on that day executed and delivered a deed assigning to them the note and mortgage, which deed was recorded on the following November 28th; that from and after April 20th the note and assignment were in their possession as collateral security for a six-days note of Marsh discounted by them on April 20th, and renewals of that note at intervals of a few days or weeks until December 5, 1900, when the last renewal was made,—being a one-month note, reciting the deposit of the note in suit as collateral security, and the only note offered in evidence to show consideration for their purchase of the note hi suit. The defendants claim that the note was not negotiated to the plaintiffs until after May 31st, and that the deed of assignment was not executed and delivered until about the time of its record. The plaintiffs further claim that, assuming the note was not negotiated to them until after May 31st, the defendants were negligent in making payment without securing the cancellation or surrender of the note, and that notwithstanding the payment the plaintiffs are holders in due course. The jury found the issues of fact presented by the plea of payment, the denial that the plaintiffs were holders in due course, and these conflicting claims, in favor of the defendants....