Miller v. Gambie , 4 Barb. 146 ( 1848 )

By the Court, Welles, J.

The testimony of the witness Jacob Gambie, of what took place at Mr. Birdsall’s office in the absence of the plaintiff, was properly received. It was conversation and transactions with the plaintiff’s agent, in relation to taking the note in question. The declarations of the party on that occasion were of the res gestee, and not obnoxious to the objection that it was res inter alios acta. The only reason why it is deemed necessary now to notice this point, is to show that the testimony was properly before the jury, and forms a part of the case. If the objection to it had been a sound one, the evidence should now be dismissed from consideration.

The evidence in relation to the consideration of the note was improperly received. The only questions before the jury were, 1st. whether the defendant Jacob Gambie had executed the note absolutely, or upon condition that another person besides the defendant should sign or endorse it; and 2d. in case the note was signed by the defendant, Jacob Gambie, under such circumstances, whether he had in any way waived the condition so as to make himself liable on the note, without the additional name being superadded. If Jacob Gambie put his name to the note under such circumstances, he had a right to insist that the agreement should be fulfilled. The question of the consideration of the note was not raised by the defendants. It was virtually admitted to be valid. Nor was it necessary for the plaintiff to prove a consideration, as the note itself imported one on its face. The defendant expressly disclaimed all question in relation to it, and placed his defence solely upon the failure to fulfil the condition under which he claimed he had put his name to the nole, and I think this defence is strongly supported by the evidence. I am not able to perceive any thing, in the case amounting to evidence; showing that the condition was waived, or that a new contract was made. The fact that the note was afterwards seen in the hands of a third person, and finally with the plaintiff, is not inconsistent with the position taken by the defendant. The note was signed by the defendant Jacob Gambie at the request of Mr. Birdsall, who had it at his ofiice at the time. It does not appear that the defendant Jacob Gambie had any agency in putting it in the hands of his son Jacob, or that he ever consented to its delivery to the plaintiff. It was incumbent on the plaintiff to prove how it came into his hands without a compliance with the condition. Nor is the fact that the defendant Jacob had an agency, or was active in getting the endorsement of the payment of $90 made, if such was the fact, a circumstance to weigh against him. It was proper to have the endorsement made, and he was interested in view of his contingent liability, to see it done; and I am at a loss to perceive how it points in any way towards a waiver of the condition upon which he signed it. It is therefore difficult to understand how the jury were able to come to the conclusion they have, without supposing that they gave weight to the fact that the note was given for a debt that b.oth defendants were originally equally liable for.

After the evidence of the consideration was out, I think the judge should have instructed the jury that such evidence should have no effect upon the questions made by the defence. His attention was called to it, and he declined giving them any advice upon the subject. I think the verdict should be set aside and a new trial granted.

Ordered accordingly.