Wardell v. Hughes

By the Court, Marcy, J. Admitting the application of the note by Hughes to have been assented to by Moore, it cannot be objected, by the drawers of the note, that it was negotiated contrary to its terms, and the object and intent with which it was made. When the endorsers are called upon, they may avail themselves of the defence, if it exists, that the note was made in renewal of a former note on which they were endorsers, and that the holders had actual or constructive notice of the fact. The evidence as to the assent of Moore was submitted to the jury, and they were correctly instructed that if the note was applied by Hughes to his individual debt, without the assent of Moore, the plaintiffs were not entitled to recover. (16 Johns. R. 38. 19 id. 158. Williams v. Walbridge, ante, p. 415.) But I think the judge erred in telling the jury that by the terms of the note its negotiability was restricted to the place where it was made payable. The jury found a verdict for the defendants, whether on the ground that the note had [420] been negotiated at a place different from that contained in the body of the note, or on the ground that it had been passed by Hughes for his individual debt, and that the assent of Moore had not been shewn, it is impossible for us to determine. If the verdict was found on the first ground, it ought to be set aside for the mis-direction of the judge; if on the latter, the evidence being of such a character that it might be regarded as, insufficient to shew the assent of Moore, it should not be disturbed. Inasmuch, therefore, as the verdict may have resulted from the error of the judge, and I think there is an even chance that it did, a new trial ought to be granted. New trial granted.