Kilborn v. Pyne

• Court: U.S. Court of Appeals — Third Circuit
• Citation: Kilborn v. Pyne, 279 F. 864 (3rd Cir. 1922)
• Decision Date: 07 March 1922
• Docket Number: 2740.
• Parties: KILBORN v. PYNE.

279 F. 864

KILBORN v. PYNE.

No. 2740.

United States Court of Appeals, Third Circuit.

March 7, 1922

Marshall Van Winkle, of Jersey City, N.J., for plaintiff in error.

James D. Carpenter, of Jersey City, N.J., for defendant in error.

Before WOOLLEY and DAVIS, Circuit Judges, and ORR, District Judge.

DAVIS Circuit Judge.

At the trial of this case, which was removed from the New Jersey Supreme Court, when the testimony was all in, the learned trial judge of the District Court directed a verdict for the plaintiff on the ground that the defendant's evidence did not constitute a defense. Only a condensed statement of the facts is necessary for the determination of the questions involved:

At the request of the plaintiff and defendant, one Anderson T. Herd on June 18, 1917, became an accommodation maker of a promissory note for $30,000 payable within three months to himself. The note, indorsed by the plaintiff and defendant was discounted by the Metropolitan Trust Company of New York and the proceeds were spent by Messrs. Pyne and Kilborn in financing the construction of a track for automobile racing called the Sheepshead Bay Speedway, in which they, with others, were interested. The note was made pursuant to an agreement among plaintiff, defendant and Herd, whereby plaintiff and defendant jointly and severally guaranteed to the Trust Company to pay the note at its maturity. In consideration of this guaranty and the indorsement of plaintiff and defendant, Herd agreed to become accommodation maker of the note and to negotiate it for them. The note was renewed on September 17, 1917, but on December 15, 1917, plaintiff paid $10,000 on the principal and renewed the note for $20,000. This was renewed by Herd under the same guaranty and indorsements from time to time until it was paid in full by the plaintiff on October 3, 1918. This suit was instituted by him to recover from the defendant one-half of the principal of the note, interest, and one brokerage commission, which amounted to $18,418.83.

There was no question about the original liability of the defendant on the original note and the renewals; but he says the plaintiff orally promised to relieve him from this liability in consideration of the assistance he rendered the plaintiff in securing several loans for him, or for companies in which he was interested. The defendant testified that he said to Mr. Pyne, in September or October, 1917, in the office of the Council of National Defense, where Mr. Pyne was engaged at the time, 'that I thought I ought to be relieved of any technical liability, which he agreed to do. ' Mr. Pyne, on the contrary, denies that he made any such promise, or that any such conversation ever took place between them. Whatever the fact may be, the defendant continued to indorse the renewal of the note until it was paid in full. The trial judge directed a verdict on the ground that this alleged oral promise, if actually made, was without consideration, and so unenforceable.

At the time the defendant alleges that he used his influence to have the banking institutions make the loans, the plaintiff did not make any promise of reward, express or implied, and the defendant did not intend to charge for his services. He testified as follows:

'Q. Now, did you

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