Macy v. Kendall

Bay, Judge, delivered the opinion of the court. Defendant was sued in the St. Louis Court of Common Pleas upon a promissory note in the words and figures following, to wit: “ $2,500. St. Louis, Mo., August 25, 1858. “ Six months after date, I promise to pay to the order of H. Berdan twenty-five hundred dollars, value received — payable at Park Bank in the city of New York. H. N. Kendall.” The note was assigned before maturity to plaintiff for value. The answer of defendant admits the execution of the note and the assignment, but sets up as a defence that it was an accommodation note and executed without any consideration. Upon the trial, it was shown that the note was executed for the accommodation of Berdan, and to enable him to realize money by negotiating it in the east. The court instructed the jury as follows : “ If the note sued on was made by defendant and delivered to Berdan, and he was authorized by defendant to use the note or negotiate it for the purpose of obtaining money thereon, and said Berdan did transfer said note to plaintiff for value, in the city and State of New York, before its maturity, then the plaintiff should recover.” The jury having found for the plaintiff, the defendant in due time moved for a new trial; which being overruled, he appeals to this court. It is insisted by the appellant that he is protected by the [167] 3d section of our statute relating to bonds, notes and accounts, (1 R. C. 1855, p. 322,) which reads as follows: u The obligor or maker shall be allowed every just set-off or other defence against the assignee, or the assignor, existing at the time of or before notice of assignment, unless it shall be expressed in the bond or note that the same is for value received, negotiable and payable without defalcation.” In the view we take of this statute, we do not see (even supposing the note not to be negotiable according to the laws of New York) how it can be made available to the defendant. By no reasonable construction of the statute can it be made to embrace a case of this kind. Its object is simply to enable a maker in a contest between himself and the assignee to avail himself of any equities existing between the original parties, and has reference to a supposed existing liability. In this case no liability was imposed upon the defendant, nor did any validity attach to the note until it passed out of the hands of Berdan. Between Kendall and Berdan it was a mere loan of credit, designed to enable Berdan to borrow money in market, and until negotiated was without vitality. (Edwards on Bills and Prom. Notes, 315; Story on Prom. Notes, 207.) Kendall executed it for no other purpose, and it was a part of the contract that it should be negotiated in the event Berdan should need the money. Having thus executed the note with an eye to its negotiation, it would be a strange statute indeed which would protect him from its payment in the hands of an assignee for value, because it was a mere accommodation to the payee. We can find nothing in the statute which will warrant any such construction. The other judges coneurring, the judgment will be affirmed, with ten per cent, damages.