Traders' Nat. Bank of San Antonio v. Parker

• Decision Date: 20 January 1892
• Citation: 130 N.Y. 415,29 N.E. 1094
• Parties: TRADERS' NAT. BANK OF SAN ANTONIO v. PARKER.
• Court: New York Court of Appeals Court of Appeals

130 N.Y. 415

29 N.E. 1094

TRADERS' NAT. BANK OF SAN ANTONIO

v.PARKER.

Court of Appeals of New York,

Second Division.

Jan. 20, 1892.

Appeal from supreme court, general term, first department.

Action on a promissory note by the Traders' National Bank of San Antonio against Charles T. Parker. The general term affirmed a judgment entered for plaintiff on the report of a referee. Defendant appeals. Affirmed.

FOLLETT, C. J., and VANN, J., dissenting. 8 N. Y. Supp. 683, affirmed.

David Wilcox, for appellant.

John Lindley, for respondent.

BROWN, J.

On or about February 11, 1884, the plaintiff was the owner and holder of an overdue promissory note for $10,265.65, made by one J. P. Hodgson and one F. W. James, and was insisting upon the payment thereof, and threatening to bring suit thereon against the makers. The defendant thereupon, with a view to obtain an extension of time for the payment of said note, affixed his signature thereto, under the signatures of Hodgson and James. This action is upon the contract thus made, and the defense relied upon in this court to defeat a recovery is that no consideration for the defendant's contract was shown.

The referee found that the consideration consisted in the plaintiff's agreement to extend the time of payment of said note, and to delay proceedings for the collection thereof, but that it did not state or agree to extend for any definite period of time; and, upon defendant's request, he further found that, ‘when the defendant signed the note in suit, plaintiff did not waive its right to sue Hodgson and James, or either of them, upon the same, whenever it saw fit.’ If the latter conclusion is to be treated as one of fact, it is clearly in conflict with the other findings, as an agreement to extend the time of payment which did not bind the plaintiff to withhold suit for some time would be no agreement at all; and the defendant would be entitled to the benefit of the rule that, when findings are so inconsistent that they cannot be reconciled, those which are most favorable to the appellant are controlling upon the appellate court. Redfield v. Redfield, 110 N. Y. 671, 18 N. E. Rep. 373; Wahl v. Barnum, 116 N. Y. 87-99, 22 N. E. Rep. 280. But it is the duty of the court, if possible, to reconcile these findings. It is only when this cannot, by reasonable construction, be accomplished, that it is bound to accept the finding most favorable to the appellant. Green v. Roworth, 113 N. Y. 462, 21 N. E. Rep. 165. The findings of the referee, taken together, are to the effect that, while the plaintiff was to delay proceedings for collection of the note, and the defendant put his signature to it in consideration of the agreement of the plaintiff to give the makers further time upon the note, the plaintiff did not state or agree that it would extend for any definite time, nor did it waive its right to sue the makers, Hodgson and James, or either of them, upon the note, whenever it saw fit. The latter findings were pursuant to request of the defendant, and the last one seems to import the effect of the former, as the referee understood it. In that view, the others represent the agreement as made between the parties, and the last one, without qualification of their terms, embraces what the referee seems to treat as the interpretation to which, in his view, they were entitled. While this does not seem quite consistent with the conclusion of law reached by the referee, it is not necessarily inconsistent with the agreement between the parties, as found by him; and therefore does not control the construction and effect to be given to those findings in support of the judgment.

While all the evidence taken upon the trial is not before us, there is a certificate in the record that the ‘case contains so much of the evidence as is material to the questions to be raised;’ and we may presume, therefore, that all the evidence bearing upon the question of consideration is in the case. Referring to the testimony, we find that the defendant was a creditor of Hodgson, one of the makers of the note. Hodgson was embarrassed financially, and other creditors were pressing their claims against him. He was the owner of a herd of 13,000 sheep, which were about to be sold at Colorado City under a chattel mortgage. The defendant desired to purchase the sheep at the sale, and wanted to borrow the money from the plaintiff to enable him to do so, and to have the proceedings for the collection of the note withheld. With this object in view, he visited the plaintiff at San Antonio with James, the joint maker of the note. The plaintiff refused to make the desired loan, but it offered to extend the time for the payment of its note if the defendant would sign it. Mr. Brownson, the president of the plaintiff bank, testified that he agreed to withhold suit on the note, and extend the time of payment. Asked as to the time of the extension, he said: ‘I don't think and definite time was agreed upon. It was to depend very much upon the movements of the other creditors of Hodgson. The proceedings at Colorado City were to cut some figure in what we were to do. It was left somewhat to the wishes of Mr. Parker.’ And it appeared that Parker thought that something on the plaintiff's debt might be realized out of the sald of the sheep, and that he was to go to Colorado City, which was about 18 hours ride by railroad from San Antonio, and attend the sale, and that it was contemplated by the parties that he should advise the plaintiff from that place, and that he did so, and that Mr. Brownson went there at his request, but he refused to...