James H. Bishop & Co. v. Buckeye Publishing Co.

Gilfillan, C. J. It is conceded by the parties, and is also apparent from the record, that the court below granted the motion for a new trial solely on the ground that the verdict was not justified by the evidence. The question therefore is, was the preponderance of the evidence “manifestly and palpably” in favor of the verdict? Upon a careful perusal of it, we cannot avoid the conclusion that it was. The sole question was, did the transaction in which the plaintiff delivered to the maker the notes made by Travis, and as indorser of which defendant is now sued, amount to a satisfaction of them, or an extinguishment of the defendant’s (the indorser’s) liability upon them. There is no dispute that in that transaction plaintiff, the holder, on a sufficient consideration surrendered its right to them, and delivered them to the maker. Upon those facts prima facie the notes were extinguished. The plaintiff, having subsequently got possession of them, must, before it can recover against the indorser, show that the transaction did not have that effect; and the only way it could show that wras by proof that the transaction was a transfer, not to the maker, but to some one else, who could hold the notes as a liability of all the parties to them. As to the transaction, there were but two witnesses, — Travis, the maker, and Bishop, plaintiff’s president. The testimony of Travis was clear and distinct, and with every appearance of probability, that plaintiff accepted from Travis the note of one Cook, indorsed by one Cheney, in satisfaction of the notes in suit, surrendering them to him, and giving to him a note payable, at his. request, to Cook, for the difference between the amount of the note received and those surrendered, making the ordinary case of a discharge of a debt by acceptance of the obligation of a third person. From the testimony of Bishop it may be gathered that it was understood to be the intention of Travis to deliver the surrendered notes to Cook, as security for his accommodation by the note made by him and delivered to Travis and by the latter to plaintiff, but there is nothing in his testimony indicating that Cook was a party to the [221] transaction, or that it was intended or understood to be a transfer of the notes by plaintiff to him. A finding on the testimony, though Travis’ testimony be disregarded, that by that transaction they became the property of Cook, could not have been sustained. Upon the surrender of the notes to the maker, they became, as obligations, extinct; and, although the maker might, so far as he was concerned, reissue them, he could not thereby revive the obligation of the indorser. Order reversed. Buck, J., absent, sick, took no part. (Opinion published 58 N. W. 872.)