Connor & Walker v. Donnell, Lawson & Co.

Gould, Associate Justice. It may be regarded as settled law, that if the note sued on was made for the accommodation of the bank, and Donnell, Lawson & Co., knowing that fact, discounted it for the bank at usurious rates, the defense of usury, if made out, would be available to both maker and indorser. 2 Parsons on Notes and Bills, ch. 12, p. 427; 1 Dan. on Neg. Inst., secs. 191, 865; Catlin v. Gunter, 1 Kernan, 369; Williams v. Storm, 2 Duer, 52. But if the note were supported by a sufficient consideration, sq that it was valid against the makers in the hands of the bank, then the rule established by the weight of authority is, that a subsequent usurious discount of the note by Donnell, Lawson & Co. for the bank would not make the defense of usury available in a suit by the indorsees against the makers. 1 Dan. on Neg. Inst., secs. 759, and 762-768, inclusive; 2 Parsons on Notes and Bills, ch. 12, sec. 3, p. 431, and authorities there cited; Knight v. Putnam, 3 Pick., 184, and other authorities cited by these authors. An accommodation note, wherever dated, signed or indorsed, takes effect, and in law is regarded as made, when and where it is actually delivered and negotiated. 1 Dan. on Neg. Inst., secs. 191, 868; Fant v. Miller, 17 Grattan, 47. Although, under this rule, a note be actually, or in law, made and indorsed by citizens of Texas in New York, and be there discounted by a citizen of New York at a rate lawful in Texas but usurious in New York, if by the date and tenor of the note it appears that the parties intended to make it payable in Texas, and contracted with reference to the laws of Texas, the courts of this state follow the authorities which hold such a note valid. Bullard v. Thompson, 35 Tex., 313; Depau v. Humphreys, [174] 8 Martin (N. S.). 1; Chapman v. Robertson, 6 Paige’s Ch., 627. But if the note sued on be in law made in New York, and be also expressly made payable at a point in that state, then the question of usury will be controlled by the law of New York. It is believed that no authority can bo adduced to the contrary. See Dickinson v. Edwards, 77 N. Y., 173. Testing appellants’ third plea or answer by these rules, it is found to present a valid defense. It shows that the note sued on was made for the accommodation of the bank, and although signed, dated and indorsed in Texas, was first negotiated and delivered in New York, and in law was made there. The note being also payable in New York, and having been discounted there for the bank at a rate of interest forbidden by the law of that state, the defense of usury, as stated by the plea, was complete. - Our conclusion in regard to the other pleas is, that they are defective. The first plea shows that the note sued on was given in renewal, for the second time, of a like note made for the accommodation of John Kerr, president of the bank, which former note was discounted by the bank for Kerr, and thereafter was discounted in New York for the bank at usurious rates. Clearly the original note was valid in the hands of the bank as against the makers, and, notwithstanding any subsequent usurious indorsement, the makers were liable on that note. The different renewal notes, like the original, would be in the hands of the bank as valid notes, and not as notes made for the accommodation of the bank, and would therefore, like the original, bind the makers, when sued by the indorsees, notwithstanding the alleged usurious indorsements, and that, too, although there was no fresh discounting of the new note by the bank, and although the new note may have been obtained by Kerr with a view to its being indorsed by the bank and discounted by appellees. From the [175] averments of the plea it appears that the note sued on was given for the purpose of extending a former note, and the legitimate inference is, that it was in the hands of the bank on the understanding that it was to be used for that purpose, and not merely for the accommodation of the bank. The averment of legal conclusions, such as that the note was not a valid or subsisting obligation until delivered to appellees in Mew York, cannot support the plea in the absence of sufficient averments of facts showing that it came to the hands of the bank unsupported by any consideration, but was placed there purely for the bank’s accommodation. In the second and fourth pleas, it also appears that the note was made for the accommodation of Kerr, but it does not sufficiently appear that Kerr delivered it to the bank without consideration, or for its accommodation. The presumption of a good consideration as between the bank and Kerr is not negatived, nor is it shown by any distinct and intelligible averments how the note came to the possession of the bank. As the conclusion reached in regard to the third plea requires a reversal of the judgment, and as the principles controlling the attempted defense of usury have been sufficiently stated, we deem it unnecessary to consume further time in discussing the different pleas of the defendant. The judgment is reversed and the cause remanded. Reversed and remanded. [Opinion delivered May 3, 1881.]