Highland Bank v. Wynkoop

1 Hill & Den. 243

• Court: New York Supreme Court
• Decided: July 1, 1843
• Status: Published

Opinion

By the Court,

Beardsley, J.

According to the testimony of Herman J. Quackenboss, the ten thousand dollar note, in suit, and those of the same amount which preceded it, were made to “ be left with the Highland Bank as collateral security only for the legitimate business paper of the different firms ” of D. G. Quackenboss & Co., Quackenboss & Co., and John Kiersted & Co., “due, or upon which they might ask accommodation, or upon drafts, notes or acceptances passing through said bank of the different firms”, to procure money, as I read the case, for the use of said firms, and not otherwise. This witness states, that the bank was, at all times, fully aware of the object for which these successive notes were made and endorsed, and consequently can not, if the statement of the witness was correct, be allowed to use them for a different purpose.

But the testimony of Alfred Post, who in this respect is fortified by other witnesses, puts a different complexion on this part of the case. He says the ten thousand dollar note in suit was left with the bank, not only as collateral security for such paper as was indicated by the witness, H. J. Quackenboss, but also to secure various other notes and drafts, then due or to become due, and such renewals thereof as the bank might thereafter make.

The bank sought to recover on the ten thousand dollar note as security for four other notes, of which one was endorsed by Strong & Ballah, but the latter was disallowed by the jury, and may be thrown out of view.

The jury however found a verdict for the amount of the other three notes, two of which were for three thousand five hundred dollars each, signed Quackenboss & Co. and endorsed by John Kiersted & Co., and the other for two thous- and three hundred dollars, signed by the defendant Kiersted alone, and endorsed by said H. J. Quackenboss alone, thus affirming that said ten thousand dollar note was a legal security to the bank for these three different obligations. This conclusion may be correct, but it depends upon various preliminary facts which ought to be determined by a jury.

According to the testimony of H. J. Quackenboss, I should regard the ten thousand dollar note as security for the two notes of three thousand five hundred dollars each, which were allowed by the jury, but not as such security for the one of two thousand three hundred dollars which was also allowed. But taking the testimony given by Post and others, on the part of the bank, as correct, the ten thousand dollar note was, undoubtedly, collateral security for all three of these notes, and upon that assumption the verdict is for the proper amount.

The circuit judge, according to the case as made, seems hardly to have left the material facts, which were in conflict, to the decision of the jury. I think he should have charged the jury that they were first to inquire whether the plaintiffs had notice of the purpose and object for which the ten thousand dollar note was made and endorsed, and if so, then to ascertain what such purpose and object were. If made and endorsed, as collateral security for the notes signed by Quackenboss & Co. and endorsed by John Kiersted & Co., and the one signed by Kiersted alone and endorsed by H. J. Quackenboss, then a verdict, equal to the amount of these three notes, should be found; but if it was not made to secure all of them the verdict should be for the amount of such of them as were fairly within its scope and object. If the jury however should find that the ten thousand dollar note was received by the plaintiffs without any other notice of the design and object for which it had been made and endorsed, than what was disclosed by the person who transfered it to the bank, then the jury must determine for what purpose and object it was so transfered to the bank; what obligations were thereby to be secured, and regulate their verdict accordingly.

It is not improbable that upon the testimony given in the cause the jury might find such a verdict as has already been rendered; but I can not understand from the case that these points, which seem to me essential, were submitted for their decision. On the contrary, the charge seems to have taken them, in effect, from the jury. I think the judge should have told the jury, distinctly, that they must find that the note was made and endorsed, as security for such paper as the individual note of Kiersted, endorsed by H. J. Quackenboss alone, or that it was received by the bank for that purpose, and without notice that it had been originally made and endorsed for a more limited purpose, before they could regard that note in finding their verdict. To the defendant Kiersted, this may not be of any importance, as he is responsible on his individual note, in any event; but the defendant, Wynkoop, is strictly a surety, and is responsible on the ten thousand dollar note or not at all. In my opinion a new trial should be had that the jury may pass upon the points material to a proper determination of the cause.

Evidence of what the defendant Kiersted had said or admitted, was certainly admissible against him, although not so against the defendant Wynkoop, and it should have appeared that the judge so advised the jury.

Various objections were made in the progress of the trial which were correctly overruled, and w’hich need not be particularly mentioned.

I would not suggest, or imply an impression, that the jury erred in rejecting the Strong & JBallah note, or that they might not well have found such a verdict as they did upon the evidence before them. The difficulty in sustaining thewer'•diet, in my view of the case, is, not that the verdict is against the weight of evidence, but that the material points in conflict were not submitted to the jury for their determination.

New trial ordered.