Woodward v. Bixby

Smith, J. The motions for a nonsuit and for setting aside the verdict raise the same question, namely, whether there was evidence from which it was competent for the jury to find a verdict *221 for tbc plaintiffs. There was evidence that would warrant the jury in finding that Stockbridge obtained the defendant’s signature by fraud, and that the plaintiffs received the note before maturity, without knowledge or notice of the fraud, in payment of Stockbridge’s overdue note for the same sum. But whenever one of two innocent persons must suffer from the acts of a third, he who has enabled another to occasion the loss must sustain it. Lickbarrow v. Mason, 2 T. R. 63, 70; Citizens’ Bank v. Smith, 55 N. H. 593, 602. The jury were instructed, in substance, that if a fraud was practiced upon the defendant by Stockbridge, and that she would not have signed the note but for her own negligence, she was estopped from setting up fraud. In returning a verdict for the plaintiffs, the jury must have found that the defendant was not in the exercise of due care in signing the note and entrusting it to Stockbridge. According to the authorities in this and most other jurisdictions, the verdict must stand. Our views as to the law upon this branch of the case were so fully expressed in the opinion of Ladd, J., in Citizens’ Bank v. Smith, supra, that they need no restatement here. The evidence offered by the defendant to show how much property she had in May, 1892, the date of the note, and how much she had acquired since, was rejected as immaterial. It was wholly irrelevant upon any issue tried. A fact logically relevant may be rejected, if, in the opinion of the tidal judge and under the circumstances of the case, it be considered essentially misleading or too remote (Cole v. Boardman, 63 N. H. 580, 581), both of which things were true of the evidence excluded. The remaining questions arise from the refusal to give the instructions requested. As between the defendant and Stock-bridge, the note was an accommodation note, and subject to the defence of want of consideration as well as of fraud. But as between the plaintiffs and defendant, there was a good and sufficient consideration. The case does not stand differently from what it would if Stockbridge were payee and indorser, and the plaintiffs were indorsees. The note was given, not in payment of a debt due from the defendant to the plaintiffs, but in payment of an overdue note from Stockbridge to the plaintiffs which was surrendered upon receiving the note in suit. There was'no evidence competent for the jury, that Stockbridge in procuring the defendant’s signature was acting as the plaintiffs’ agent; and there was no evidence that the defendant understood Stockbridge was acting as agent for any third person. The whole case shows that in procuring the defendant’s signature Stockbridge was acting in his own behalf,— that he was procuring the means for paying his own debt to the plaintiffs. The case is the same as if he had fraudulently procured a loan from the defendant of §1,000, and used the money to take up his overdue note. Exceptions overruled. Chase, J., did not sit: the others concurred.