Eagle Bank of New-Haven v. Smith

Hosmer, Ch. J. This motion for a new trial, is founded on the supposition, that the verdict of the jury was against the evidence. By way of preliminary objection, it has been said, that the motion is defective, inasmuch as the judge did not return the jury to the third consideration, nor explicitly state, that their verdict was opposed to his opinion. I think there is no foun [74] dation for this objection. The granting of a new trial, for the misdetermination of the jury, in point of fact, is not by law placed on the foundation, that the judge should have directed a reconsideration of the case, but upon the question, whether their verdict was clearly against the evidence. The law, undoubtedly, requires the court should be of the opinion, “ that the verdict is against the evidence in the cause (Slat. p. 54. seek 68.) and that this opinion, was entertained by the judge who tried the cause, is conclusively apparent from the motion. It was presented to the judge, for allowance, under his signature; and is confined entirely to the question concerning the weight of evidence. Then either the judge must have been of the opinion, that the verdict was decisively against the evidence, or he allowed a motion entirely nugatory, and for no imaginable purpose. It is a legal presumption, that he exercised his jurisdiction soundly, repelled by no fact, or circumstance, and confirmed, by every consideration in the case. Thai the verdict of the jury was most palpably against the evidence, admits of no reasonable doubt. Frederick Parmelee was the general agent of the defendants; and the plaintiffs were authorised to consider him as such. He was a clerk in the defendants’ store, and had been for years; and, in many instances, as their agent, had done business with the plaintiffs. These facts sufficiently establish his general agency. Neal v. Erving, 1 Esp. Rep. 61. Barber v. Gingell, 3 Esp. Rep. 60. But whether he was, or was not, their agent, the legal consequences are precisely the same. The defendants cannot take benefit of a pretended payment of their note, by a stranger, if she payment was fictitious, and not actual. A forged note, or dishonoured draft, if delivered in payment is no satisfaction or extinguishment of an antecedent demand; and for the most just and obvious reasons. They are of no value; and not what they were, either expressly or impliedly, affirmed to be, by the person delivering them as a payment, or believed to be, by him who accepted them as such. On this point, the law is too well astablished, to require the aid of argument. Puckford v. Maxwell, 6 Term Rep. 52. Owenson v Morse, 7 Term Rep. 64, Stedman v. Gooch, 1 Esp. Rep. 5. Roget v. Merritt & Clapp, 2 Caines 117. Markle v. Hatfield, 2 Johns. Rep. 455. Smith v. Smith, 2 Johns. Rep. 235. Young v. Adams, 6 Mass. Rep. 182. Arnold v. Crane, 8 Johns. Rep. 79. That an action for money had and received, may be maintained, by the payee of a promissory note, against the maker [75] is a well established principle. Clark v. Martin, 1 Salk. 128. Carter v. Palmer, 12 Mod. 380. Grant v. Vaughan, 3 Burr. 1516. Harris v. Huntbach, 1 Burr. 373. Smith v. Kendall, 6 Term Rep. 123. Smith v. Smith, 2 Johns. Rep. 235. Young v. Adams, 6 Mass. Rep. 182, 2 Phil. Ev. 10. 11. It is equally well settled, that as against the maker, the same action is sustainable by the indorsee, whether immediate or remote. Dimsdale v. Lancaster, 4 Esp. Rep. 201. Master v. Miller, 4 Term Rep. 339. Grant v. Vaughan, 3 Burr. 1516. Edie & al. v. The East India Company, 1 Bla. Rep. 295. 299. Tatlock v. Harris, 3 Term Rep. 174. Pierce v. Crafts, 12 Johns. Rep. 90. Arnold v. Crane, 8 Johns. Rep. 79. Cruger v. Armstrong, 3 Johns. Ca. 5. Burdick v. Green, 18 Johns. Rep. 14. Nor does it make any difference, if the note, through an unfounded belief of payment, has been given up, no more than if it had been lost by time and accident. The written evidence of debt is gone, but the debt remains unextinguished, by a misconception of the payee or holder, and recoverable, on legal proof of the facts. If a position so obviously just, requires the support of authority, it has it, in Arnold v. Crane, 8 Johns. Rep. 79. Pierce v. Crafts, 12 Johns. Rep. 90. and in Young v. Adams, 6 Mass. Rep. 182. In Waynham v. Bend, 1 Campb. 175. Lord Ellenborough was of opinion, that a promissory note is evidence under the money counts, as between the original parties only; but this case was expressly overruled, in Pierce v. Crafts, 12 Johns. Rep. 90. and is in opposition to several of the cases, which have been cited. The above case of Waynham v. Bend was erroneously adjudged, by reason of two very obvious and palpable misconceptions. It undoubtedly proceeded on the ground, that the action for money had and received, can only be grounded on privity of contract; but this supposition is in direct opposition, even to the common cases, in which that action is sustained. There is no privity between the finder of money lost, and the owner who lost it; nor between the person, who, through fraud or deceit, acquires the money of another, and the person of whom it was acquired; nor between one, who has taken the lees of an officer, claiming a right so to do, and another who has a title to them; and yet, in all these cases, the action for money had and received may be maintained. 1 Cranch, append. 440, 1. (Vid. the cases cited, ibid.) If, however, privity of contract were requisite, it exists between the maker of a negotiable note, and the remotest indor [76] see; for it is a contract to pay the money to any person who may become entitled to it by transfer; and as soon as the bearer becomes entitled, such privity commences. It is indisputably clear, that the plaintiffs were entitled to the verdict of the jury, in this case, on one of the money count; and for the mistake of the jury on this point, I would advise n new trial. Peters, J. concurred generally in the opinion expressed by the Chief Justice; though he was not prepared to say, that in this state, the holder of a note may bring indebitatus assumpsit for the consideration of such note, when he might sue upon the note itself. Chapman and Brainard, Js. concurred fully in the opinion of the Chief Justice. Bristol, J. being interested in the event of the cause, gave no opinion. New trial to be granted.