Merkle v. Beidleman

• Decision Date: 27 November 1900
• Citation: 165 N.Y. 21,58 N.E. 757
• Parties: MERKLE v. BEIDLEMAN et al.
• Court: New York Court of Appeals Court of Appeals

165 N.Y. 21

58 N.E. 757

MERKLE

v.BEIDLEMAN et al.

Court of Appeals of New York.

Nov. 27, 1900.

Appeal from supreme court, appellate division, Third department.

Action by John D. Merkle against James F. Beidleman and others. From a judgment of the appellate division (51 N. Y. Supp. 916) reversing a judgment for plaintiff and ordering a new trial, he appeals. Reversed.

Edward G. Herendeen, for appellant.

Frederick Collin, for respondents.

BARTLETT, J.

This action was brought to foreclose a mortgage dated March 4, 1885, given by one of the defendants (James F. Beidleman) and his wife to Eliza Beidleman to secure the payment of a bond in the sum of $700. The mortgagee assigned this mortgage on the 20th of July, 1895, to the plaintiff, John D. Merkle. Eliza Beidleman, the mortgagee, was a maiden lady, and at the time of her death in November, 1895, was 84 years of age. She lived by hereself on her farm until the last two or three years of her life, when an occasional sickness required some of her relatives to visit her frequently, and at times remain with her for indefinite periods. It became evident in the summer of 1895 that her health was failing and she could no longer live alone. The plaintiff testifies that in this condition of affairs he agreed to take her to his own home and care for her for the remainder of her days. He was to pay doctor's bills, furnish medicine and any help that was necessary to take care of her, and pay funeral expenses and any debts that she might leave unpaid. In consideration of these and a small amount of money advanced for her account, she was to assign this bond and mortgage to him. It was understood between them that this burden assumed by the plaintiff might extend over a long period of time; and, on the other hand, it might prove, as was the case, a contract covering only a few months. The mortgagor set up as a defense, in substance, that by a verbal agreement between him and his aunt, the mortgagee, entered into in the summer of 1889, and prior to the assignment of the mortgage to the plaintiff, he was to render certain services to the mortgagee, in looking after her farm and general interests, and in consideration thereof she was to surrender to him the bond and mortgage in question, as fully paid, satisfied, and discharged. No question is raised as to the bond and mortgage having been made for full consideration. The mortgagee, Eliza Beidleman, died November 11, 1895, and this action to foreclose the mortgage was instituted shortly thereafter. At the trial the defendant sought to prove the oral declarations of the mortgagee to sustain his claim that she had agreed to surrender to him this bond and mortgage upon the conditions to which reference has already been made. In the early part of the trial, the learned judge presiding refused to admit these declarations. Later he opened the case after the evidence was closed, and allowed the defendant to swear witnesses as to these declarations, and the plaintiff to introduce his answering proofs. Still later the trial judge again reconsidered his decision, and struck out all the evidence relating to the declarations. It was found that the assignment of the mortgage to the plaintiff was for a valuable consideration. The defendants insist that this finding is unsupported by any evidence whatever. The record discloses evidence to support the finding. The usual judgment in foreclosure was entered up, and the defendants appealed to the appellate division. That learned court held the plaintiff was not a bona fide holder for value of the bond and mortgage, and reached the conclusion that the declarations of the mortgagee sought to be proved by the defendants were improperly ruled out, reversed the judgment, and ordered a new trial; one of the justices dissenting.

We are of opinion that the trial judge properly rejected the declarations of the mortgagee, under the established rule in this state, that the declarations of a vendor of chattels, or the assignor of a chose in action, made before he parted with his interest therein, are inadmissible against a vendee or an assignee for value. The early history of the rule in this state shows some differences of opinion among the judges and text writers, but the weight of authority was even then in its favor. In 1843 the court of errors, in the case of Paige v. Cagwin, 7 Hill, 361, gave the subject an exhaustive examination; Senator Lott writing a learned and able opinion, in which he reviewed the cases of our own and other states, as well as those in the English courts. This was the case of an action on a negotiable promissory note transferred for value after maturity. The principal question was whether the declarations of the payee while he was the holder of the note were admissible against the plaintiff. The supreme court sustained the ruling of the trial judge rejecting the evidence, and the court of errors affirmed the judgment. Senator Lott, after commenting upon the cases at...