Cook v. Cockrill

1 Stew. 475

• Court: Supreme Court of Alabama
• Decided: July 15, 1828
• Status: Published

Opinion

By JUDGE PERRY.

It appears to us to be very clear that the evidence offered should have been received, for it is a well settled principle that where the consideration passing between the endorsee and his endorser is not equal to the amount of the note, the endorsee in an action against’he end- rser can only recover the consideration which he h-.s already paid; which makes the amount of damages which rin. en-dorsee is entitled to recover, as fixed by the liability of the parties to the instrument. It is expressly laid down, that the endorser will be allowed, when sued by his immediate endorsee, to shew what was the real consideration passing between them. If this suit was by the endossee against the maker of the note, it would not be a defence to the action or lessen the damages for him to say the plaintiff purchased it at a discount, but as the defendant was the immed'ate endorser to the plaintiff, the proof offered that the note was endorsed to the plaintiff for a less sum than the note called for upon its face, should have been admitted, to ascertain the damages the plaintiff had sustained in consequence of the nonpayment of the note by the maker.

a

Reversed and remanded.

Judge Gayle not sitting.

. 13 Jolm. 52.,