Globe National Bank v. Ingalls

Ames, J. The only questions made by the defendant at the trial or in argument are, 1st, whether there was a sufficient legal consideration for the note in suit; 2d, whether it was correctly ruled at the trial, that, as matter of law, there had been no sale of the bonds held by the plaintiff. 1. It appears upon this report that the Winthrop Horse Railroad Company borrowed money of the plaintiff, giving in return its promissory notes, and depositing its own mortgage bonds to the amount of $9000 with the lender as collateral security. Some of these notes were not paid at maturity, and were several times renewed. In renewal of one of these notes, a new one was given, for the sum of $1045, dated May 1, 1875, payable in seven months. This new note was indorsed by all the defendants, and also by one Saunders, who became a bankrupt before its maturity. In November 1875, another note, for $1000, with out Saunders’s name, was given, which was not taken up at maturity ; and the jury have found, under instructions not excepted to, that the note in suit and the November note were given in renewal of the note of May 1, 1875. There can be no doubt, [11] therefore, that the note in suit was on sufficient legal consideration, unless an inference to the contrary ought to be drawn from the dealings of the parties in relation to one or both of the previous notes. The November note was taken up by the one in suit. 2. It appeared that, after Saunders had gone into bankruptcy, an agreement was entered into between his assignee and the president of the plaintiff bank, in relation to the note of May 1, 1875, the effect of which, as the defendant contends, is that that note was wholly, or at least in part, paid, and that whatever was so paid upon that note should be credited towards the note in suit, the latter having been found to be a renewal of the former. There was evidence that, in the proof of a claim against the estate of Saunders, the plaintiff made a written statement that the bonds, which had been deposited as collateral security for the loan, had been sold by agreement with his assignee in bankruptcy and the proceeds credited at the rate of twenty cents. on the dollar of their nominal amount. The plaintiff undertook to meet this evidence by proof that the transaction was not a real sale, but an unsuccessful attempt at a sale; that the object was to fix upon some amount as the unsecured balance provable upon that note against Saunders’s estate, in order to share in whatever dividend might be paid by that estate; and that in fact the bank had not realized twenty per cent, or any other sum whatever, by the alleged sale of the bonds. Upon the question whether there had been a sale of the bonds, the jury should have been allowed to pass, and it was an error to withdraw the case from them and direct a verdict for the plaintiff. It was not a question of law, but of fact, upon which the jury might find either way, according to the effect of the evidence upon their minds. Globe National Bank v. Ingalls, 126 Mass. 209. New trial ordered.