Meise v. Doscher

PARKER, J. McGrath v. Clark, 56 N. Y. 34, and Bank v. Thomas, 79 Hun, 595, 29 N. Y. Supp. 837, are not distinguishable from the case presented by this record, and require that the judgment shall be reversed as to the defendant Newman. About January 30, 1891, the defendant Henry Newman, at the request of John H. Doscher, who was engaged in business under the name of Doscher & Co., indorsed a note in blank, and delivered it to Doscher. The printed matter upon the face of it was like that in general use, and its delivery to Doscher had the legal effect of an authorization to him to fill up the blanks. But, in addition to filling up the blank spaces, there was also inserted the words, “with interest at the rate of five per cent, per annum, payable semiannually.” All the writing upon the face of the nóte, with the exception of the signature of “Doscher & Co.,” was placed thereon by the plaintiff’s attorney in her and Doscher’s presence. Unless, then, there was other authority, in respect to the form of the note, conferred upon Doscher by Newman than is evidenced by the delivery of the blank indorsed by him, the insertion of the provision relating to interest operated to invalidate the note as between this plaintiff and Newman. The evidence does not suggest that, at the time of this indorsement in blank, Doscher and Newman discussed the matter at all. Indeed, the only evidence, tending in that direction even, consists of the fact that the three notes surrendered by the plaintiff at the time the note in suit was given also drew interest at the rate of 5 per cent, per annum. Newman testified that he had indorsed other notes in blank for Doscher, and whether the notes then held by plaintiff were so indorsed, or whether Newman was to take them up, and, if so, whether Newman was aware of the addition of the words relating to interest, the record is silent. Indeed, there is no evidence that Newman knew that this note was given to the plaintiff as a renewal of other notes, or that he had any information of the particular use which was to be made of it by Doscher. Under this evidence, therefore, it is at least doubtful whether there was sufficient evidence to go to the jury upon the question whether authority was given Doscher to fill in the words relating to interest) but we need not consider that question, as, perhaps, a different state of facts may be showfi on the retrial. [1074] As between the plaintiff and the defendant Doscher, the question of payment should have been submitted to the jury. The defendant testified that he gave a check for $1,562.50 personally into the hands of the plaintiff, and the cashier of the bank, upon which it was alleged to have been drawn, testified that at about that time the bank paid for the defendant and charged to his account a check in that amount. The defendant said he was unable to produce the check, because it had been burned up. Plaintiff denied having received the check, or that the defendant, at that or any other time, gave her a check in such an amount. There was other evidence bearing upon the question, but we have referred to enough of it to make it clear that it was for the jury to say whether defendant Doscher paid to the plaintiff the sum testified to by him, by means of a check. The exception taken by the defendant to the refusal of the court to submit that question to the jury was well taken. The judgment should be reversed, and a new trial granted, with costs to the appellants to abide the event. VAN BRUNT, P. J., concurs.