Frederick A. Potts, Respondent, v. Isaac Mayer, Impleaded, etc., Appellant

Frederick A. Potts, Respondent, v. Isaac Mayer, Impleaded, etc., Appellant. (Argued May 20, 1878; decided May 28, 1878.) This was an action upon a promissory note, executed by the firm of Hyman & Mayer, of which firm defendants were the partners, payable to the order of one Kohn, and indorsed by him to plaintiff. Defendant Mayer alone defended. Hyman testified that the note was given to Kohn for him to get discounted, and to return the proceeds. Instead thereof he delivered the note to plaintiff, who credited Kohn with the amount thereof upon his books, to apply on a precedent debt. Plaintiff delivered to Kohn receipted bills; these upon their face appeared to have been receipted the day before the note was received ; the note was not mentioned in them. When the note was protested, plaintiff charged it back to Kohn. Hyman testified that he paid Mayer his private money for the note ; this, however, Mayer, as a witness, denied. There was some evidence which the court state was “ vague and shadowy,” that Hyman & Mayer were indebted to Kohn, but there was no evidence that the note was given for that debt. Defendant’s counsel asked the court to submit to the jury the question whether plaintiff was a bona fide holder of the note, which the court declined to do, and directed a verdict for plaintiff! Held, error ; that the evidence failed to show plaintiff to be a bona fide holder for value ; that if the note was included in the amount of the receipts, the}'' were not evidence of an express agreement to receive the note in payment, and the charging of the note back repelled any presumption that it was intended to be received in payment. The court cited JSToel v. Murray (13 N. Y., 168); Buswell v. Poineer (37 id., 312); Bradford v. Fox (38 id., 289); Weaver v. Barden (49 id., 286); Bright v. Judson (47- Barb., 29). The General Term sustained the judgment, upon the ground that assuming that plaintiff was not a bona fide holder, a verdict might properly have been directed for the plaintiff, on the ground that no defense to the note was shown as against Kohn. Held, error ; as there was a conflict of evidence upon this point, which should have been submitted to the jury. G. W. Carpenter for appellant. Samuel Hand for respondent. [MAJORITY — Church, Ch. J.,] Church, Ch. J., reads for reversal and new triaL All concur. Judgment reversed.