Assumpsit on a promissory note. The plaintiff alleged that the note was made by the defendant to the order of one Kerr, on demand, with interest payable annually at six per cent. He further alleged that he bought the note from Kerr for value.
Good law ✅— No negative treatment on recordhow we know
Heard on petition of defendant for a new trial · Decided 1900-11-23
How this case has been cited
Cited by 3 later decisions — most recently August 1968
3 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶1
(1)
The court is unable to see from the testimony any adequate consideration for the note in question. It was not given for a purchase of Kerr’s interest in the saloon, for he and the defendant continued as partners for a long time after the date of the note. It does not appear to have been given as a settlement upon a stated account, because Kerr says it was not the whole of what was due him,
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and that the partnership accounts have never been settled, and that there were items of the account at that time which still remain. Kerr says it was for money which he put into the saloon, but that fact is not at all clear from the testimony. His conduct is inconsistent with such a claim, because he made no demand upon the defendant on the note while he held it, nearly a year and a half, although the defendant was amply able to pay, and received no interest on it, according to its tenor.
John W.
Hogan, for plaintiff.
Henry W.
Hayes, for defendant.
¶2
(2)
The non-payment of annual interest would clearly render the note overdue in the hands of the plaintiff, and therefore subject to the equities between the original parties.
¶3
(3)
The refusal to charge as requested about the note as collateral security for a balance due to Kerr when ascertained, was rightly i'efused for lack of testimony tending to show any such undertaking or from which it could be inferred. Otherwise such request should have been granted. The second request was toó broad in its terms and was rightly refused.
¶4
The verdict is against the evidence, and a new trial is granted and the case will be remitted.
