Auerbach v. Peetsch

Van Wyck, J. This action was upon a promissory note made by defendants to the order of one Moonelis, indorsed and delivered by him to plaintiffs-for full value before maturity. The defendants’ answer alleged that the note was not delivered to Moonelis, or to any one, for value. The plaintiffs put the note in evidence, and one of them testified that they received it from Moonelis, before maturity, in payment of two of Moonelis’ notes held by them, which, together, equaled the amount of the note in suit, and that thereupon they surrendered to Moonelis his two aforesaid notes. These transactions, if truthfully stated, made the plaintiffs, under the Hew York law, bona fide holders for value. To substantiate the defense, the defendant. Peetsch testified as follows: “The signature to this note is my signature. That note was delivered to me by Mr. Moonelis, and after that delivery it was returned. Two days afterwards he came to my office, and told me that the bank would not discount such a big note; that they were tight of money, and to make two small notes in place of it. This note was returned to me, and I never again delivered it to him or to anybody else. He came with that note to my office, and wanted two notes in place of it. After that note of $1,351.20, dated September 3, 1890, being plaintiffs’ Exhibit A, was returned [103] to me by Mr. Moonelis, I never delivered it to him or to anybody else. I say that I never parted with that paper after it was returned to me. I know how it left my possession. I never saw it afterwards, in the hands of Mr. Moonelis, or in anybody else’s hands. I did not see it after it left my possession. It was left on the table, and I was called out, and when I came back the note was gone; and when I asked him afterwards about the note, he told me he had the note destroyed; that he unintentionally took it along. ” This is all of the evidence offered by the defendants except as to the original consideration for the note. At the close of the testimony in the case is found the following: “Defendants’ counsel asks the court to direct a verdict in favor o£ the defendants. Motion denied. Exception.” And “plaintiffs’ eounsel'then asked the court to direct a verdict in favor of plaintiffs. The court thereupon directed a verdict in favor of the plaintiffs for $1,359.30. The defendants excepted.” This exception can be of no avail to the defendants on appeal, for the reason that when both parties requested the court to direct a verdict they thereby conferred upon the judge all of the authority over the questions of fact which the jury would have otherwise had; and, unless some merit can be found in the defendants’ other exceptions, they can not prevail. But these other exceptions are directed against the rulings of the court excluding evidence offered by defendants tending to show what was the original consideration for the note. These rulings, however, seem proper, as the defense was that the note, some time after making and delivery, and after its redelivery to the maker in exchange for two other notes, was, say, stolen from the maker. Here the substance of the defense is the felonious taking of the note from the maker by its payee, and, if this is a good defense against a bona fide holder for full value, it would be such even though the note had been originally given by the maker for full value; and, as a good defense cannot be made better, of what consequence can it be that the note was originally given without any consideration? And, moreover, if it had been originally given by the maker without consideration, it would be, except for this intervening defense of felonious taking, good in the hands of a bona fide purchaser; and the court, in the exercise of the functions of a jury, has held both that the plaintiffs are bona fide purchasers, and that the note was not delivered, redelivered, and retaken, as testified to by a party to the action. Such determination was justified by the evidence, and the judgment is affirmed, with costs. Newburgher, J., concurs.