Summary
holding that the assignee of a note could hold the maker liable for full payment, notwithstanding that the maker had paid the promisee in full
Summary of this case from Petak v. City of PatersonOpinion
11-20-1930
MARTLING v. HEMHAUSER et al.
Samuel M. Hollander, of Newark (Albert M. Grossman, of Newark, on the brief), for plaintiff. Sidney Marks, of Millburn, for defendants.
Action at law by Edward H. Martling, the assignee of a note, against Louis J. Hemhauser, administrator of the estate of C. J. Hemhauser, deceased, and another. On motion to strike out the answer.
Judgment ordered for plaintiff in stated amount, if plaintiff is willing to accept such amount, otherwise answer to be stricken out in part.
Samuel M. Hollander, of Newark (Albert M. Grossman, of Newark, on the brief), for plaintiff.
Sidney Marks, of Millburn, for defendants.
PORTER, J.
This is a motion to strike out the answer.
The facts do not seem to be in dispute, and briefly are:
Plaintiff holds as assignee a note of Harvey L. Morse made payable to the order of C. J. Hemhauser, who is now dead. The note was for $1,000, was dated July 11, 1929, and matured in three and one-half months.
Under date of October 25, 1929, Mr. Morse paid the note and accrued interest by check of that date drawn to the order of Mr. Hemhauser for $1,022.50. Mr. Morse states that at that time he had no knowledge of the assignment of this note by Mr. Hemhauser to the plaintiff or to any one else; that, on the contrary, Mr. Hemhauser stated that he had mislaid the note, and, when he accepted payment, said he would shortly return it to Mr. Morse.
It also develops that this was a series of notes, maturing monthly, I think, and that the next note of the series was paid by Mr. Morse.
Mr. Hemhauser died, and a long time afterwards Mr. Morse was advised that the note had been assigned to Mr. Martling, and that the assignee looked to him for payment.
It also develops that the note was assigned to the plaintiff before maturity, without notice, and that the same was not presented at maturity. The defendant contends that the failure of the plaintiff to present the note was a matter of negligence, and that that fact is a jury question. Under the statute, presentment upon maturity was not required; and, there being no legal duty, there can be no question of negligence.
Failure of presentment, however, becomes important as to the right of the plaintiff to recover interest and costs from that time. The defendant contends that he was ready and willing to pay at maturity, and therefore under the cases cited is not liable for interest and costs which have accrued since.
It seems to me that the only question is as to whether or not the defendant was in fact ready and willing to pay at maturity, so that the exact amount due may be ascertained. Surely the assignee for value before maturity, the plaintiff in this case, is notbound by the payment made by Mr. Morse to the payee at maturity, unless it be shown, which is not done in this case, that he was acting as agent for the assignee at that time.
Mr. Morse unfortunately, when he paid and did not receive the note, did so at his peril, so far as any interests of third parties were concerned.
If counsel is satisfied to take judgment for $1,022.50, the amount that was due at the maturity of the note, an order to that effect may be entered. Otherwise the answer will be stricken out, except on the one point above mentioned—as to the right to recover, in view of the nonpresentment of the note at maturity, the costs and interest from that time.