Dumartrait v. Kemper

Wyly, J. Plaintiff, for the use of Henry Penn and his creditors, sued the defendant on certain promissory notes, amounting in the aggregate to ninety-ñve hundred dollars, executed by defendant to the order of Henry Penn and indorsed by him. The defense is failure of consideration caused by eviction of defendant of the principal part of the tract of land for the purchase price of which these notes were given. The plaintiff is not a third holder before due for value. He holds [621] these notes as agent ior Henry Penn, the payee, with the understanding that when collected a part of .the proceeds is to be applied to the payment of certain creditors whose claims are in his hands as attorney at law, and the balance of the proceeds is to be paid to Penh. Besides, if plaintiff acquired these notes in pledge for the creditors of Penn, his clients, he did so with full knowledge of the defective title which defendant received to the land, in consideration of which the notes were given; and his knowledge was the knowledge of his clients. Failure of consideration is clearly shown. There is no demand in re-convention in the pleadings, although urged in the brief, for the cash part of the price of the land paid by defendant to Penn. Besides, Penn has not been cited. If plaintiff has authority from Penn to sue on the notes, that does not give him authority to represent him in the demand to recover the cash part of the price of the land which he paid to Penn at the time of the sale. It is therefore ordered that the judgment in favor of plaintiff be annulled, and that plaintiff’s demand be rejected with costs of both courts.