Opinion
March Term, 1896.
Lucien Birdseye, for the appellant.
Chas. E. Lydecker, for the respondent.
There seems to be no dispute but that there was an entire want of consideration for the giving of the notes. They were given as therein expressed for the purchase price of lands therein described, and the lands were never conveyed to the maker of the notes, but are still owned by the plaintiff, or the payee of the note or by other parties. The evidence also shows conclusively that the plaintiff had notice before he took the transfer of the notes of this want of consideration. The consideration was plainly stated in the notes themselves, and the plaintiff's attention was called to the fact that some of the lands at least were owned by himself, and could not, therefore, be conveyed to the maker of the notes. He knew that they had not been so conveyed because they could not be without his own personal act in conveying his title thereto.
He was thus put upon inquiry as to the consideration of the notes having been paid, and could not in taking the transfer claim to be himself a bona fide transferee of the notes. It is said, however, that the other parties interested with the plaintiff in the transaction were not shown to have been purchasers with notice of such want of consideration. Our attention is called to the cases of Constant v. University of Rochester ( 111 N.Y. 604), Slattery v. Schwannecke (118 id. 543), where it was decided that a principal would not be charged with the knowledge of his agent, acquired, not while he was engaged in the business of his principal, but while he was transacting business for other parties. Here, however, the knowledge of the plaintiff was acquired while transacting the business of his principals, if he might be regarded as their agent at all.
This action is not brought by such alleged principals, but by the plaintiff, the alleged agent himself, in his own interest as alleged in the complaint, and the only question is whether he is entitled to recover in his own right. When the other parties alleged to have been his principals shall come into court and allege their interest in the notes, and attempt to recover thereon, it will then be time to consider their rights and whether they shall be permitted to enforce the notes. The fact being undisputed that the notes were given without consideration, it must appear that the plaintiff took the notes before maturity, in good faith and without notice of the want of consideration, and made advances thereon, relying upon them, otherwise he would not be entitled to enforce payment of the notes by the maker thereof.
It does not seem to us, therefore, that the evidence offered by the plaintiff and excluded by the court, was material or would have changed the result if it had been received. The court properly dismissed the complaint upon the grounds stated.
We think the trial court properly denied the plaintiff's motion for a new trial on the ground of surprise for the reasons stated in its opinion. There could not well have been any surprise. The plaintiff knew what the issues were and if he desired to give any evidence with reference thereto he should have been prepared to give it on the trial.
The judgment and order appealed from should be affirmed, with costs.
VAN BRUNT, P.J., O'BRIEN and INGRAHAM, JJ., concurred.
Judgment and order affirmed, with costs.