Roberts v. Fisher

53 Barb. 69, 1868 N.Y. App. Div. LEXIS 139

• Court: New York Supreme Court
• Decided: November 2, 1868
• Status: Published

Opinion

By the Court, J. F. Barnard, P. J.

The plaintiffs sold goods to the defendants, to be paid for in business paper, the notes of third parties, which should be pronounced satisfactory by the plaintiffs. Under this arrangement, about the 7th of April, 1861, the defendants proposed a note made by Homer Eice & Co. for $377.75, for the plaintiffs’ acceptance. On the 2d of April, 1861, the note was declared satisfactory by the plaintiffs. The defendants promised to send the note by mail, or bring it to Hew York at their next visit. On the 17th of April, 1861, the note was transferred by the defendants to the plaintiffs by indorsement, and a receipt taken therefor without recourse, on account. On the 16th of April, 1861, Homer Rice & Co. stopped payment, which fact was not known to either party. The jury found for the defendants.

[New York General Term, November 2, 1868.

The evidence of the agreement to take the note in payment, with the actual transfer of the same, and the written acknowledgment. that it was so taken without recourse, on account of the plaintiff’s claim, furnish sufficient grounds for the jury to find that the note was taken at the risk of the plaintiffs. If so, the receipt of the note was a payment of the claim, and an extinguishment of the plaintiff’s right of action. (3 E. D. Smith, 66.)

The judgment should therefore be affirmed, with costs.

J. F. Barnard, Curdozo and Ingraham, Justices.]