Creech v. Byron

Devens, J. The evidence offered by the defendant was competent. By it he did not seek to invalidate the title conveyed by the absolute bill of sale, which was the case in Harper v. Ross, 10 Allen, 332; but on the contrary, recognized the validity of the instrument and insisted that the proceeds of the resale of the property transferred thereby were by agreement made subsequently to the execution thereof to be applied upon the note in suit. An absolute bill of sale of certain personal property was made by the defendant to the payee at the time he signed this note, and no consideration therefor appears other than that which may be inferred from the fact that these two acts were contemporaneous ; and it was competent to show in an action upon the note that it was agreed subsequently that this property should be held for the payment of the note, and that, in pursuance of it, the payee sold the property and assumed to apply the proceeds upon it. This was simply evidence of the consideration for the bill of sale and of the mode in which that consideration was to be paid, and even if the agreement that the property or its proceeds should be held for the payment of the note was made subsequently to the execution of the bill of sale, so long as the consideration for that remained unpaid, the parties were entitled to make it. If acting under it the payee of the note sold the property and assumed to apply the proceeds thereon, the defendant is entitled to show if he can that he failed to apply the whole proceeds, and what was the amount actually received by him in defence to an action brought by the present plaintiff who was a purchaser after the time of this agreement and sale, and after the maturity of the note. The evidence offered did not tend to alter or vary the legal effect of the instrument, so far as it transferred the property either es between the parties to it or those claiming derivatively under [326] it, but tended to show the real character of the entire transaction as bearing upon the question whether or how far the note could properly be enforced by a third person, who took it subject to all such defences as might have been made against it, if it had remained the property of the payee. Howard v. Odell, 1 Allen, 85; It should therefore have been admitted. Exceptions sustained.