Smith v. Weston

• Citation: 159 N.Y. 194,54 N.E. 38
• Parties: SMITH v. WESTON et al.
• Decision Date: 06 June 1899
• Court: New York Court of Appeals

159 N.Y. 194

54 N.E. 38

SMITH

v.WESTON et al.

Court of Appeals of New York.

June 6, 1899.

Appeal from supreme court, general term, Fifth department.

Action by William H. Smith against Abijah Weston, impleaded with Orren Weston and another. From a judgment of the general term affirming a judgment entered on a verdict directed for defendant (34 N. Y. Supp. 557), plaintiff appeals. Affirmed.

C. S. Cary, for appellant.

J. H. Waring, for respondent.

VANN, J.

This action was brought against the defendants as second indorsers upon a note, dated December 4, 1891, whereby George Van Campen & Sons, nine months after date, promised to pay to the order of J. K. Van Campen, administrator, $2,000, at the First National Bank of Olean, N. Y., for value received. The note was indorsed by ‘J. K. Van Campen, Administrator,’ as first indorser, and by ‘Weston Brothers' as second indorsers. The defendant Abijah Weston alone answered, alleging that the indorsement of Weston Bros. was made for the accommodation of the makers, without consideration or authority, and that the plaintiff knew it when he took the note. The firm of George Van Campen & Sons was composed of George Van Campen, George Van Campen, Jr., and James K. Van Campen; but before said note was made George Van Campen had died, and the partnership was continued by the survivors under the old firm name. James K. Van Campen was administrator of the estate of George Van Campen, his father, and indorsed in that capacity. The note in question was given to renew a similar note held by the plaintiff, which was the second or third of a series originating 18 months or 2 years prior to the date of the last, each made and indorsed in the same way. The firm of Weston Bros. was composed of Abijah, Orren, and William W. Weston, and William W. wrote the name of his firm on the back of these notes, for the first of which the plaintiff paid cash. From 1885 or 1886 until 1892 he indorsed in this way the paper of George Van Campen & Sons for their accommodation to the amount of about $60,000. He also indorsed notes made by five other makers for their accommodation, and the paper was discounted at various banks, and was also purchased by individuals. The Van Campen paper, prior to the death of George Van Campen, was made payable to and indorsed by him as payee, and he disposed of it, but after his death it was made payable to and indorsed by James K. Van Campen, administrator, as payee, and was disposed of by him. Weston Bros. had no benefit from any of this paper, which was all used for the benefit of the various makers thereof, and the use of the firm name by William for the accommodation of others was without any express authority from his co-partners. Evidence was given tending to show that these indorsements by William were made with the implied authority of the other members of the firm, but it was not conclusive, and presented a question of fact. Although the conflict in the evidence was slight, different inferences were permitted, and it would have been the duty of the trial court to submit the question to the jury, had not each party moved for the direction of a verdict in his favor. The court denied the motion of the plaintiff, who made no request to go to the jury, and granted the motion of the defendant, and the plaintiff excepted to each ruling. Upon appeal to the general term the judgment entered upon the verdict dismissing the complaint was affirmed, and the plaintiff now comes here.

As both parties moved for the direction of a verdict, and neither asked to go to the jury, the case presented upon this appeal is the same in effect as if the cause had been duly submitted to the jury, and they had found a verdict in favor of the defendant. As was said in Thompson v. Simpson, 128 N. Y. 270, 283,28 N. E. 630: ‘The effect of a request by each party for a direction of a verdict in his favor clothed the court with the functions of the jury, and it is well settled that in such case, where the party whose request is denied does not thereupon request to go to the jury on the facts, a verdict directed for the other party stands as would the finding of a jury for the same party in the absence of any direction, and the review in this court is governed by the same rules as apply in cases of ordinary verdicts rendered without any direction. All the controverted facts, and all inferable facts in support of the judgment, will be deemed conclusively established in favor of the party for whom the verdict was directed.’ While upon the production of the note by the plaintiff, and proof of the signatures of the parties thereto and of presentment and notice of dishonor, a prima facie case was established in his favor, as soon as it appeared that the note was indorsed outside of the firm business, and without the authority of all the members, the burden of proof shifted, and, in order to recover, it was necessary for the plaintiff to show that he was a bona fide purchaser, or that the indorsement...