Opinion
May 2, 1906.
N.B. Spalding, for the appellant.
James A. Leary, for the respondents.
The court evidently directed the verdict in favor of the defendant Waldron upon the theory that the defendant's testimony that the checks and renewal notes were taken in payment of the former note was undisputed and, therefore, that no question of fact was presented for the jury to determine. The burden of proof to show that the old note was paid rested upon the defendants, it having been taken in payment of a precedent debt. ( Hall v. Stevens, 116 N.Y. 201, 206.) I do not think it can be said that they satisfied this burden as a matter of law. Whether the taking of the checks and the renewal notes constituted a payment of the note sued upon depends upon the intention of the parties as manifested by the facts and circumstances attending the transaction. ( Matter of Utica Nat. Brewing Co., 154 N.Y. 268.) The only evidence upon the subject was given by the defendants themselves. They were interested witnesses, and although not contradicted, a question of fact was presented as to their credibility and the weight to be given to their testimony. ( Honegger v. Wettstein, 94 N.Y. 252; Canajoharie Nat. Bank v. Diefendorf, 123 id. 191, 200.) More than this, most of their testimony was not as to any facts upon the subject of payment, but only as to conclusions. For instance, the defendant Waldron testified with respect to the new notes and checks that the plaintiff's manager "accepted them as payment," and in answer to the question, "The renewal notes you gave him that day you gave him for payment?" he answered, "Yes, sir."
The defendant Ramsey was asked to state what took place at the time the renewal notes were made, and he testified: "Mr. Utterback (the plaintiff's agent) asked me to sign those notes, and I said I would, and he said he would return the old note to Waldron. Q. Did you say you would sign it on the ground that the other note was paid? A. Yes; he said he would send it, and it was all satisfactory." There was nothing else testified to as to what was said by the plaintiff's agent at the time the renewal notes and the checks were given from which it could be inferred that the agreement between them was that they were taken in payment. When testimony of this character is given by interested parties and the old note is in fact retained by the payee, it cannot be said as matter of law that it has been proven that the new notes were taken in payment, and it was, therefore, error to direct a verdict for the defendant Waldron.
With respect to the defendant Cudney a different question is presented. He was an indorser and denied that the note had been duly protested. The burden to show this was on the plaintiff, as Cudney had served notice with his answer that he had not received notice of protest. The only proof given by the plaintiff on the subject of service of notice was that given by the notary in whose hands the note was placed for protest. He testified that the note contained no designation of the address of either of the indorsers, Ramsey or Cudney, and that notices for the several indorsers were mailed to the bank at Jackson, Mich. (where plaintiff's principal office was located), "inclosed in an envelope directed to them and accompanied by a postage stamp for mailing notice to the indorsers." It was shown that the Jackson bank was a subsequent indorser, but there was no evidence that this bank ever sent the notice to Cudney, who had resided at Corinth, Saratoga county, for eighteen years. This was the only notice shown to have been addressed to him; but as this was not mailed to him but to the Michigan bank, the plaintiff failed to show a fact essential in establishing its cause of action against him. Cudney was also sworn in his own behalf and said that he had never received notice of presentment or protest. There was no conflict in the evidence in this respect, and the court, therefore, properly directed a verdict in his favor on the ground that it had not been shown that he was properly charged as indorser.
The judgment as to the defendant Waldron should be reversed and a new trial granted, with costs to the appellant to abide the event, and the judgment as to the defendant Cudney should be affirmed, with costs against the appellant.
All concurred, except PARKER, P.J., not voting, and COCHRANE, J., who concurred in result as to the defendant Cudney and dissented as to the defendant Waldron.
Judgment as to the defendant Waldron reversed and a new trial granted, with costs to appellant to abide event, and judgment as to the defendant Cudney affirmed, with costs against the appellant.