¶1Under the special plea, the evidence is inadmissible ; but if the counsel will state, that at the time the plaintiff took the note, he knew of this agreement, it may be admitted under the general issue.
¶2Evidence was then offered to show that the plaintiff only held the note as agent of Beach, and as collateral security, and when he presented it, he was told of the contract, and said, if he had known it, he should not have come down.
¶3LANE, J. to jury. If the suit were between Beach and Phillips, and the property was tendered to the agent, according to the agreement, and was accepted or retained for him, that will discharge the defendant. But, the question is, whether the plaintiff was affected by this movement ? The note was negotiable, and endorsed to the plaintiff before due. Any payment made before the endorsement, is good for so much, if the endorsee, when he took the note, had notice ; if not, he took the note unincumbered by such payment, because the maker should have seen that the payment was endorsed, and not have left the note without endorsement in the hands of the holder, to be passed away as if all was due.
¶4Verdict and judgment for the plaintiff.