Summary
In Farr we held it inferable from the $15,000 principal sum of an earlier mortgage given to secure payment of "any and all notes, checks and drafts indorsed" by the mortgagee and the fact that but one $3,000 indorsement had been made at the time the earlier mortgage was executed that a "series of indorsements to the amount of $15,000, or nearly, was within the contemplation of the parties (132 N.Y., at p 330) and that "plaintiff may construe the promise as beneficially to himself as its terms will fairly admit" (id., at p 331).
Summary of this case from State Bank v. FioravantiOpinion
Argued March 14, 1892
Decided April 19, 1892
Charles Lyons, Jr., and Merritt E. Sawyer for appellant.
George S. Klock for respondent.
The appellant claims that the plaintiff's mortgage by its terms covered past indorsements only, and did not cover those for which recovery was had.
This contention is based upon the terms of the mortgage which declares it to be given as security for the payment of "any and all notes, checks and drafts indorsed" by the plaintiff.
At the time plaintiff made his indorsements upon the last two notes of the mortgagor he had no notice, actual or constructive, of the existence of the mortgage to the appellant. He, therefore, had the same right to make indorsements upon the faith of his mortgage security as if the appellant's mortgage had not been made. ( Ackerman v. Hunsicker, 85 N.Y. 43.)
Evidence was received to the effect that when the plaintiff's mortgage was given the plaintiff was indorser for the mortgagor upon only one note. That was for only $3,000, and as the consideration expressed in the mortgage was $15,000, and the mortgage was given to secure payment of "any and all notes, checks and drafts indorsed" by the plaintiff, the inference was justifiable that a series of indorsements to the amount of $15,000, or nearly, was within the contemplation of the parties.
As between the plaintiff and the mortgagor it was proper to show the amount of the plaintiff's indorsements then existing, in order to aid in ascertaining whether they used the word "indorsed" in the mortgage solely with reference to such existing indorsements, or with reference to existing and future indorsements. ( Agawam Bank v. Strever, 18 N.Y. 502; Simons v. First National Bank, 93 id. 269; Merchants' Natl. Bank v. Hall, 83 id. 338.)
Since the plaintiff was not affected by the appellant's mortgage, it follows that the appellant was in no position to resist the application of this rule of evidence.
The evidence showing the existence of the note when the mortgage was given, in connection with the evidence touching the two subsequent notes, was necessary to enable the court clearly to understand the subject-matter in controversy.
When the facts were understood the terms of the mortgage were also understood; they were not altered or varied. The mortgage was for the protection of the plaintiff. The words "any and all notes, checks and drafts indorsed" are comprehensive words; there are no words restricting the meaning of the word "indorsed," such as now, heretofore, already, or which have been. The plaintiff may construe the promise as beneficially to himself as its terms will fairly admit.
We think the judgment should be affirmed.
All concur.
Judgment affirmed.