Mynderse v. Snook

53 Barb. 234, 1869 N.Y. App. Div. LEXIS 3

• Court: New York Supreme Court
• Decided: March 1, 1869
• Status: Published

Opinion

By the Court, Johnson, J.

I do not see upon what ground a nonsuit could have been granted, properly, in this case. The note upon its face was payable to the plaintiff only, or to his order. The defendants set up by way of defence in their answer, that the note belonged to the plaintiff and one Van Cleef as parties who were engaged in business under the firm name of “Mynderse & Co.” and also a counter-claim in their favor against Mynderse and Van Cleef as such parties. The defendants gave evidence to show that the money for which the note was given, was advanced, and such note was given in pursuance of a contract between the defendants and Mynderse & Co. by which a quantity of hogs were to' be purchased by the defendants and delivered to Mynderse & Co. to be fed and fattened for the defendants. This evidence tended to show that the money advanced and for which the note was given was the money of Mynderse & Co. They -also gave evidence tending to, show a breach of the contract by Mynderse & Co. and that damages had accrued to the defendants from such breach. The plaintiff, on the other side, testified that the note belonged to him exclusively and that the money advanced was his money, in which Van Cleef had no interest, and that he had none whatever in the note. In this the plaintiff was sustained by the testimony of Van Cleef. The court ruled, as matter of law that the plaintiff' could not maintain an action in his own name alone, to recover the amount due by the terms of the note. It is difficult.to see upon what ground such a result could have been arrived at. The defendants had promised to pay the plaintiff alone, as plainly appeared upon the face of the note. The action was upon this promise, and, for aught I can see, was properly in the name of the promissee who held the obligation. If the question of the exclusive ownership by the plaintiff was of any importance it should have been submitted to the jury; at least the plaintiff" should not have been nonsuited on that question. The ruling seems to have been put upon the ground that even if Van Gl'eef had no interest in the note, or in the money for which it was given, still no action could be maintained by the plaintiff without making him a party plaintiff. This was the ground upon which the nonsuit was asked by the defendants’ counsel. It was claimed that the money was advanced upon the contract, and, therefore, the parties to the contract must necessarily unite in the action on the note. But the contract itself ' provides that the defendants should give their note for the loan of the $1000, and says nothing as to whom shall be payee of such note. They have elected in part fulfillment of the agreement on their part to receive the money and promise to pay it to the plaintiff, individually, or to his order. This is not a void or voidable promise, but is perfectly valid and binding, for aught that appears in the case, and the plaintiff owning and holding the note, in his own right, was the only proper party to an action upon it.

The parties to the note and to the agreement are not the same. The note is no part of the agreement, but a separate and independent promise, made by the defendants in execution and fulfillment, pro tanto, of that part of the agreement on their part. The agreement is a collateral undertaking between the defendants and other parties, one of whom, only, is the plaintiff. Where the note and the agreement are between different- parties, cross actions must be resorted to, and not pleas in bar or answers by way of contradiction, founded upon the agreement. (2 Pars, on Notes and Bills, 537. Salmon v. Webb, 16 Eng. Law and Eq. 37.) The contract' lijis no connection with the note except as it may be regarded as forming or establishing, in part, a consideration for the making of such note. The questiqn of consideration does not arise in the case, and the note was severed from the contract by the act and consent of all the parties, at the time it was made and delivered.

[Monroe General Term, March 1, 1869.

A new trial must, therefore, be granted, with costs to abide the event.

E. D. Smith, Johnson, and J. C. Smith, Justices.]