Tollman v. Quincy

U.S. Circuit Court for the District of Southern New York

Tollman v. Quincy

129 F. 974, 1904 U.S. App. LEXIS 4787

CourtU.S. Circuit Court for the District of Southern New York

DecidedMarch 14, 1904

StatusPublished

This text of 129 F. 974 (Tollman v. Quincy) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Southern New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tollman v. Quincy, 129 F. 974, 1904 U.S. App. LEXIS 4787 (circtsdny 1904).

Pincite

Opinion

HOLT, District Judge.

The defendant alleges in his answer that the note in suit was given to Bates “to enable him to effect a settlement of the said suit of the plaintiff against the said Bates.” He testified on the trial, in substance, that he gave Bates the note to be used, if necessary, during his absence in Europe, to renew certain joint obligations on which both their names appeared, and that he knew nothing about the proposed use of the note to settle a debt of Bates until after its delivery. The general rule is that admissions in a pleading cannot be contradicted by testimony. Assuming, however, that this note was [975]*975either an accommodation note or a diverted note, I think the plaintiff is a bona fide holder, before maturity, for value. It was transferred in settlement of a pending suit, and was therefore transferred for value within the meaning of that term in commercial law. Northern, etc., Co. v. Kelly, 113 U. S. 199, 5 Sup. Ct. 422, 28 L. Ed. 948; Swift v. Tyson, 16 Pet. 1, 10 L. Ed. 865; Oates v. National Bank, 100 U. S. 239, 25 L. Ed. 580; Railroad Co. v. National Bank, 102 U. S. 39, 26 L. Ed. 61; American File Co. v. Garrett, 110 U. S. 288, 4 Sup. Ct. 90, 28 L. Ed. 149; Rector v. Teed, 120 N. Y. 583, 24 N. E. 1014; T. N. Bank v. Parker, 130 N. Y. 415, 29 N. E. 1094. The proof is that the plaintiff had no knowledge that the note was an accommodation note or that it had been diverted. His counsel was told that it had been given by Quincy to Bates in settlement of an account between them.

I think that the agreement of settlement between Tollman and Bates constitutes no defense. The effect of the agreement was, in my opinion, that, if the note were not paid at maturity, the plaintiff had an election, either to go on with the original suit, or to enforce payment of the note. It is not the correct construction of the agreement, as I regard it, that Bates or Quincy, or both, could elect not to pay the note, and that thereupon the plaintiff was left with no other remedy except to go on with the original suit. There was no reason why Tollman should have taken Quincy’s note at all, if it could not be enforced.

My conclusion is that the plaintiff is entitled to judgment for the amount demanded in the complaint, with costs.

Free access — add to your briefcase to read the full text and ask questions with AI

HOLT, District Judge.

The defendant alleges in his answer that the note in suit was given to Bates “to enable him to effect a settlement of the said suit of the plaintiff against the said Bates.” He testified on the trial, in substance, that he gave Bates the note to be used, if necessary, during his absence in Europe, to renew certain joint obligations on which both their names appeared, and that he knew nothing about the proposed use of the note to settle a debt of Bates until after its delivery. The general rule is that admissions in a pleading cannot be contradicted by testimony. Assuming, however, that this note was [975]*975either an accommodation note or a diverted note, I think the plaintiff is a bona fide holder, before maturity, for value. It was transferred in settlement of a pending suit, and was therefore transferred for value within the meaning of that term in commercial law. Northern, etc., Co. v. Kelly, 113 U. S. 199, 5 Sup. Ct. 422, 28 L. Ed. 948; Swift v. Tyson, 16 Pet. 1, 10 L. Ed. 865; Oates v. National Bank, 100 U. S. 239, 25 L. Ed. 580; Railroad Co. v. National Bank, 102 U. S. 39, 26 L. Ed. 61; American File Co. v. Garrett, 110 U. S. 288, 4 Sup. Ct. 90, 28 L. Ed. 149; Rector v. Teed, 120 N. Y. 583, 24 N. E. 1014; T. N. Bank v. Parker, 130 N. Y. 415, 29 N. E. 1094. The proof is that the plaintiff had no knowledge that the note was an accommodation note or that it had been diverted. His counsel was told that it had been given by Quincy to Bates in settlement of an account between them.

I think that the agreement of settlement between Tollman and Bates constitutes no defense. The effect of the agreement was, in my opinion, that, if the note were not paid at maturity, the plaintiff had an election, either to go on with the original suit, or to enforce payment of the note. It is not the correct construction of the agreement, as I regard it, that Bates or Quincy, or both, could elect not to pay the note, and that thereupon the plaintiff was left with no other remedy except to go on with the original suit. There was no reason why Tollman should have taken Quincy’s note at all, if it could not be enforced.

My conclusion is that the plaintiff is entitled to judgment for the amount demanded in the complaint, with costs.

Cite This Page — Counsel Stack

Bluebook (online)

129 F. 974, 1904 U.S. App. LEXIS 4787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tollman-v-quincy-circtsdny-1904.

Opinion

Related

Cite This Page — Counsel Stack