Lowney v. Perham

[240] The opinion of the Court was by Shepley J. This suit is on a bill of exchange drawn on the fifil of October, 1836, by the defendant upon Benjamin Tainter and payable to his own order at the Suffolk Bank, Boston, in nine months from date. It was drawn and indorsed by the defendant for the accommodation of Tainter. Richard Treat, according to the testimony of Hayford, introduced by the defendant, is found in possession of the bill and disposing of it to the plaintiff at a discount greater than six per cent, per annum; and he indorsed it. A question arose on the trial, whether the bill, as between Tainter and Treat, was accommodation or business paper; and the jury found it to be business paper. It is insisted, that this finding was not authorized by the testimony. The only testimony now presented is contained in the report of the case. It may be true, that Treat was an accommodation indorser and an agent for Tainter in selling the bill, but there is no proof of it. On the contrary he is found in possession of, and dealing with it as his own. He sells it and receives the money. An agency could not be presumed. The Court is not authorized therefore to say, that the jury might not justly conclude, that Treat received it of Tainter for value and sold it for his own benefit. Regarding the bill then as business paper, should the presiding Judge have required Alfred Johnson to have answered the question, “ whether the plaintiff did not inform him how much he gave for said draft, and what it was ?” The witness declined answering, on the ground that he was interested in the bill, having been a joint purchaser of it with the plaintiff. Whatever doubts may have once existed as to the right of a witness to be protected when his answer would not expose him to punishment or subject him to a penalty, but might to a pecuniary loss, the tendency of modem decisions has been to remove them. And it has now become the settled rule, either by acts of legislation or by judicial decisions, in England and in most of the States, that the witness in such cases is obliged to testify. Yet if the testimony might be properly excluded on another ground, there is no just cause of complaint. It [241] should be noticed, that the answer could have no tendency to prove the bill to be accommodation paper. It was decided in French v. Grindle, 15 Maine R. 163, that a negotiable promissory note, free from usury and made for value as between the parties to it, might be indorsed by the holder and sold át a greater discount than legal interest, and the transaction would not be usurious. It has been before stated, that this bill must be regarded as of that description of paper; and the testimony coming from the answer could not have constituted a legal defence. Nor could it have been available in mitigation of damages, although it might have been, if the suit had been against the party from whom it was purchased. Braman v. Hess, 13 Johns. 52. If it should be admitted therefore, that the witness did not come within the rule, which admits the declarations of the real party in interest and relieves hirn from giving testimony, the Judge might properly exclude the testimony as irrelative. There can be no doubt, that the Judge properly determined, that he would not pass any order respecting the defendant’s claim to have a further answer of the plaintiff to the bill in equity. It would be a most extraordinary proceeding to call upon a presiding Judge, to order a further answer to be made to a bill in equity, no otherwise before him than as testimony in a suit at law. The holder of a bill or note may maintain a suit upon it in his own name with the consent of the party interested. Bragg v. Greenleaf, 14 Maine R. 396. The effect of giving time to the principal has been fully considered in the cases of Page v. Webster, 15 Maine R. 249, and Leavitt v. Savage, 16 Maine R. 72. And the rights of the surety are stated to be impaired and he is therefore discharged, when the creditor has disabled himself to proceed against the principal at law, or has placed himself in such a position, that the principal can in equity obtain an injunction against his proceeding. The first clause in the contract of the 19th of November, 1838, between the plaintiff and the principal debtor provides, that the action pending [242] between them should be defaulted at the next term of the Court. This was for the benefit of the plaintiff, relieving him from the introduction of testimony, and the effect would be to enable him to obtain judgment sooner, rather than to give time. The next clause provides, that the action shall be continued for judgment at the next term “ if one thousand dollars of the debt is paid before the Court sits in December next.” This was a conditional contract to give time to the principal, and might have brought the case within the principle deduced in the Bank of the United States v. Hatch, 6 Peters, 250, if there had been a performance on the part of the debtor. It was decided in Badnall v. Samuel, 4 Price, 174, that a conditional agreement not performed, to give time to the acceptor on his paying part, did not discharge the indorser. In this case the condition was not performed and the proposed delay was not granted. Judgment on the verdict.