McLoghlin v. National Mohawk Valley Bank

Martin, J. The principal controversy between the parties related to the interest upon the money deposited with the defendant by plaintiffs’ testator. The referee found that the money was deposited in pursuance of an agreement or understanding between the plaintiffs’ testator and defendant that interest should be paid on the testator’s account. This finding was, we think, justified by the evidence. - The referee also found that there was no subsequent valid agreement changing the testator’s account from an interest-bearing to a noninterest-bearing account, or releasing the defendant from its obligation to pay interest thereon. A careful examination of the evidence contained in the appeal book has failed to disclose to us any such proof that the agreement to pay interest was either terminated or modified by a subsequent one, as would justify us in disturbing the finding of the referee. While it may be said that the defendant evinced a desire, and perhaps a determination, to terminate the agreement to pay interest, still we think the evidence was such as to justify the referee in finding that that desire or determination was never carried into execution, and that the original agreement between the parties continued in full force. We therefore find no error in his conclusion that the plaintiffs were entitled to recover interest on the testator’s account at the rate allowed. On the trial the plaintiffs claimed, and gave evidence which tended to prove, that an agreement existed between the testator and defendant by which interest was to be paid on the the testator’s account. The defendant, while substantially admitting that such an agreement had previously existed, gave evidence tending to show that that agreement was superseded or terminated by a subsequent agreement or understanding between the parties that no interest was to be paid. In answer to the evidence thus given by the defendant, the referee permitted the plaintiffs to prove, by several witnesses, the value of the use of money in the vicinity of defendant’s bank; that the testator had money deposited in several other banks, all of which paid interest on such deposits; and that one of the banks offered him the usual rates (5 per cent, when left on deposit three months or longer) for any money he might have to deposit. This evidence was objected to as improper, incompetent, and |immaterial. When the evidence was offered, the plaintiffs stated that it was offered for the sole purpose of establishing that the testator’s account was an interest-bearing account, and rebutting the evidence of defendant's witnesses as to a subsequent agreement. The objection was overruled, and the defendant excepted. The validity of these rulings is one of the important questions in this case. “It is relevant to put in evidence any circumstance which tends to make the proposition at issue either more or less improbable.” 1 Whart. Bv. 21. In this case the defendant sought to establish the fact that its agreement to pay interest had been terminated by a subsequent agreement that no interest should be paid. To rebut the evidence of defendant’s witnesses tending to establish that fact, the evidence objected to was admitted. Proof that, during the time this deposit was held by the defendant, the value of the use of money was, at least, equal to that received by the testator under his first agreement, that all of.his money was deposited in banks and drawing interest, and that he was offered interest at “going rates” on all the money he would deposit in a bank where he resided, tended to show the improbability of the defendant’s claim that the testator left the money in question on deposit in its bank for 20 years and more, under an agreement that he should receive no interest therefor. In Burlew v. Hubbell, 1 Thomp. & C. 235, the defendant, being pressed for money, applied to plaintiffs’ testator for a loan, which was promised if defendant would give, a note signed by himself and one F. Afterwards another person brought to testator a note, signed with the names of F. and the defendant, and received the money thereon. In an action upon such note, defendant denied the execution thereof, and it was held that evidence show [174] ing that the defendant, about the time he applied for the loan, procured from another source the amount he desired to borrow, was admissible to reb.ut the presumption arising from the circumstance that he was pressed for money. In Hotchkiss v. Insurance Co., 5 Hun, 90, where an action brought on a policy of insurance was defended on the ground that insured had set the building on fire, it was held that evidence as to wliat had been offered for rent for the property was properly received as tending to show the value of the building, and that it was greater than the amount insured. In Pomeroy v. Pierce, Id. 119, the action was for legal services. One B. was the attorney in the suit. It was claimed that plaintiff was employed by B. with the consent and approval of the defendant. This was denied by the defendant, and he offered on the trial to show an agreement between himself and B., that B. should take charge of the case and conduct it for a sum agreed upon. The evidence was excluded. On appeal, the court held that the evidence was admissible as bearing upon the probability of the employment of the plaintiff by the defendant. In Nicholls v. Van Valkenburgh, 15 Hun, 230, which was an action on a note by defendant’s testator, payable to the order of plaintiff’s testator, and the defense was that the note was not used, and» was without consideration, it was held that evidence of the financial situation of the parties at the time the note was made, and at its maturity, was admissible to sustain the defendant’s version of the transaction, and to show the improbability of its remaining overdue without a demand for its payment. In Wallis v. Randall, 16 Hun, 33, affirmed 81 N. Y. 164, where the question was whether a mortgage was transferred as an absolute payment of a debt of that amount, or only as security therefor, it was held that evidence that, at the time of the transfer, the property covered by the mortgage was worth more than the amount of it and a preceding mortgage thereon, was admissible as tending to show that the transfer of the mortgage was intended as a payment. In Dishno v. Reynolds, 17 Hun, 137, an action brought to recover money paid to the defendant, it was held proper to show the payment to the plaintiff of money by a third person, for the purpose of showing that the party had money from which the payment to the defendant might have been made. In Cornell v. Markham, 19 Hun, 275, it was held that evidence as to the value of services to be rendered was admissible as bearing upon the question whether a certain contract was made. The same was held in Bean v. Carleton, (Sup.) 4 N. Y. Supp. 61. In Pontius v. People, 21 Hun, 328, affirmed 82 N. Y. 339, where the defendant claimed that two notes were given to him in consideration of an indebtedness due him for borrowed money, exceeding in amount that of the two notes, it was held that evidence tending to show that the defendant was at that time embarrassed in his pecuniary circumstances, and pressed by numerous creditors, whom he was unable to pay, was admissible, as tending to show that he had no money to lend. In Dryer v. Brown, (Sup.) 5 N. Y. Supp. 486, an action brought to -enforce the payment of notes, claimed to have been made by a decedent against his executors, who interposed the defenses of usury and want of consideration, it was held that evidence on the part of the defendant, tending to show that the payee of the note, who was alleged in the complaint to have loaned the money constituting the consideration therefor to the decedent, was not -possessed of any property or money, and had not the pecuniary means to make the loan, was competent. In Quincey v. White, 63 N. Y. 370, which was an action against several persons upon an account arising from stock transactions, claimed by-the plaintiff to have been joint transactions on the part of the defendants! -but claimed by one of the defendants to have been several, it was held that evi [175] dence that that defendant had a private account running at the time was competent as a circumstance tending to show that the other account was joint, and not several. The authorities cited seem to uphold the doctrine that evidence of circumstances, which tend to make a proposition at issue between the parties improbable, is admissible to aid the court in correctly determining such issue. It must be admitted that the correctness of the rulings under consideration is not wholly free from doubt, but we think the principle of the authorities cited justifies us in upholding them. There are other exceptions taken by the appellant, all of which we have carefully examined, but have found none that would justify a reversal or that need be discussed. These considerations lead to an affirmance of the judgment. Judgment affirmed, with costs. Hardin, P. J., concurs. Merwin, J., dissents.