John Gordon, Respondent, v. John A. Boppe et al., Appellants

John Gordon, Respondent, v. John A. Boppe et al., Appellants. (Submitted December 3, 1873; decided January 20, 1874.) One of the parties to a joint adventure can make his own terms, and dictate the security upon which he will advance his individual funds for the benefit of all. And such securities are valid and capable of being enforced. This was an action upon a promissory note made by defendant, Boppe, payable to the order of defendants, Hartshorn & Brand. The plaintiff, Hartshorn & Brand, and one McKendrick, had purchased a quantity of malt for the sum of $13,371.68, on joint account, which was intrusted to Harts-horn & Brand, for sale; McXendrick paid for his third. To raise the money to pay the balance, Hartshorn & Brand made their note payable to plaintiff, who procured the same to be discounted. To take up this note, plaintiff agreed to advance $6,000, upon the receipt of notes as security. Notes to the amount of $8,000 were delivered to him by Hartshorn & Brand, and thereupon he advanced the $6,000. The balance of the first note, $2,864, Hartshorn & Brand paid themselves. Defendant Boppe had no interest in the transaction, and was merely an accommodation maker ot the note in suit. Subsequent to the giving, and before the maturity of said note, the parties agreed to a division of the malt, and plaintiff received his one-third thereof. Held, that the plaintiff had the right to make his own terms, and dictate the security upon which he would advance his individual funds for the benefit of all, and that the note was valid in his hands; but held (Allen, J., contra), that as, by the subsequent dealings between the parties, the joint adventure was closed, and plaintiff was bound to pay his share of the purchase-price, plaintiff could only recover against Hartshorn & Brand, either upon the note or otherwise, the amount equitably due from the latter, upon settlement of the accounts growing out of the joint dealings; that the law would not permit a recovery of the payees of any sum beyond what plaintiff could lawfully retain; and that Boppe, the accommodation maker, was entitled to the same defence as the payees, as otherwise it would be allowing plaintiff to recover of Boppe what he could recover of Hartshorn & Brand, and they, in turn, could recover of plaintiff. Charles N. Black for the appellants. John I. Bill for the respondent. [MAJORITY — Church, Ch. J.,] Church, Ch. J., G-boveb, Rapallo and Andbews, JJ., for reversal; Allen, J., writing the opinion; Allen, J., for affirmance; Folg-ee, J., not voting. Judgment reversed.