Ross v. Whitefield 11 N.Y. 640

James Ross, Appellant, v. George Whitefield, Respondent.

(Argued March 26, 1874;

decided April 7, 1874.)

This was an action to recover the sum of $500 alleged to' have been loaned by the firm of Bullwinkle & Merrill, plaintiff’s assignees, to defendant.

Prior to the formation of that firm, defendant made his note for that sum for the accommodation of Merrill, which had been renewed from time to time, Merrill furnishing the money to take it up and receiving a new note, which he procured to be discounted. After the formation of the firm, *641the notes were made payable to the firm and the firm cheeks were given to take them up. Defendant finally notified Merrill upon giving a new note, that he would not renew it again, and that when it was due the transaction must be closed. Upon the coming due of the note a firm check was drawn by Bullwinkle, payable to defendant and delivered to Merrill to take up the note, which check was handed by the latter to defendant, who used it for that purpose. The referee found that defendant received the check, not as a loan from the firm, but as a performance of Merrill’s individual obligation to provide for the note at maturity. Held, that the production of the checks furnished no evidence of a loan, but that unexplained, the presumption was that it was given for a firm debt, and that upon the facts found, the use of the check in payment of the note must be deemed to have been assented to by Bullwinkle. It was claimed on behalf of plaintiff, that the check was drawn and delivered by Bullwinkle on condition that it was to be transferred to defendant, upon his giving a new note. The referee made no finding on this subject, the court held that the question whether the fact if found, would entitle plaintiff as assignee of the firm, to recover the amount of the cheek as upon a loan by the firm could not be considered, as the evidence did not conclusively establish the fact of the conditional delivery, and it was not so found by the referee.

Thomas Allison for the appellant.

S. T. Freeman for the respondent.