Morgan v. Thompson

• Decision Date: 20 November 1905
• Citation: 62 A. 410,72 N.J.L. 244
• Parties: MORGAN v. THOMPSON et al.
• Court: New Jersey Supreme Court

62 A. 410

72 N.J.L. 244

MORGAN

v. THOMPSON et al.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1905.

(Syllabus by the Court.)

Error to Supreme Court.

Action by John Morgan, Jr., against William J. Thompson and others. Judgment for defendants, and plaintiff brings error. Reversed.

Francis D. Weaver and H. D. Miller, for plaintiff in error. E. B. Learning and T. J. Middleton, for defendants in error.

FORT, J. On October 31, 1902, the plaintiff made his promissory note for $3,000 to the order of G. C. Mick, payable at the Security Trust Company, of Camden, N. J. The note was without consideration. The note was subsequently indorsed by Mr. Mick and William J. Thompson, and discounted at the Security Trust Company, the proceeds thereof being placed to the credit of Mr. Thompson. The note not being made at its maturity, the trust company sued the plaintiff upon it and recovered a judgment thereon, which the plaintiff paid, with interest and costs. This suit was instituted to recover from Mick and Thompson the money so paid.

At the trial it was testified by the plaintiff that the note was made, at the request of Mick and Thompson, to raise money for their purposes, and that at the time the plaintiff gave the note they had promised him that they would pay it and he would hear no more about it. On the plaintiff's proof it was clear that the defendants had received the proceeds of the note, and that the plaintiff was a mere accommodation maker. When the plaintiff rested his case, a judgment of nonsuit was entered on the ground that under the proof it was an effort to establish by parol a contract different from that shown by the written instrument. We think this was a misconception of the true nature of the suit, and was error. This is not a suit upon the note, but a suit for so much money paid for the use of the defendants. The note is a mere item of evidence in the transaction. This note was not enforceable against the maker in the hands of either Mick or Thompson. If either of them had sued the maker upon it, the real transaction could have been shown. Since the passage of the negotiable instrument act evidence is admissible, even between indorsers, to show that as between themselves they have agreed as to the liability otherwise than as appears from the order of their indorsement upon the note. The note is only prima facie evidence of the order of liability. P. L. 1902, p. 596, § 68. As between the original parties, the consideration of a...