I cannot concur in the opinions of the court. It seems to me that the conclusions of the opinions depend upon the assumption of facts which do not appear in the record.
The note on which the action in this case was brought was one upon which the respondent appeared as all indorser subsequent to the indorsement of the plaintiff. The allegation in the complaint, and that which the plaintiff was required to prove in order to succeed in the action, was that the respondent indorsed the note for the purpose of giving credit to the maker with the plaintiff, the payee-thereof, and that the said note was delivered to the plaintiff so indorsed, who parted with value therefor. The evidence in the-case only showed that the defendants Carpenter and Roderick had been copartners ; that, as such copartners, on or about the 5th of May, 1.892, they had given a noté in the course of their business to the plaintiff,, payable probably in four months; and that Carpenter and Roderick had dissolved the firm, Carpenter assuming to pay its obligations. The note of the 5th of May, 1892, which Carpenter and Roderick had given to the .plaintiff, was past due at the time of the giving of the note in suit, but there is not a scintilla of evidence tending to show that the respondent knew that fact. Carpenter brought the note in suit to Roderick and asked him to indorse it, but there is no evidence tending to show that Carpenter in any way informed Roderick of the purpose for which it was to be used. The note of May fifth, if payable in a given number of months after date, as commercial paper is usually made payable, had been due nearly three- weeks at the time of the indorsement of the note in suit-; and as there is no evidence that Roderick had any knowledge that it had not been honored at maturity, it must be assumed that Roderick believed it to be paid, as he had a right to do. Under these circumstances, it *345seems to me there is not the slightest ground for the inference that Roderick knew that the note was to be used to take up an old note which was past due and which, for aught he knew, had been paid by Carpenter, as he was under obligation to do.
It is asserted in the prevailing opinions that it appeared upon the face of the note that Carpenter made the promise to pay Cuming, who, to the knowledge of Roderick, held the firm note, for Roderick was present when that firm note was given originally to the plaintiff. There is not the slightest evidence that Roderick had any idea that the previous note of the firm had been allowed to become due and to remain unpaid, or that Roderick knew that he was liable ■ upon the previous note or that it was held by Cuming, as assumed in the prevailing opinions.
It is further, assumed that the answer admits that the note sued upon was given in substitution for the previous note. It is difficult to see how such an assumption can be derived from the pleadings, inasmuch as the previous note is nowhere mentioned therein. But, even if this were the fact, it would not alter the position of the parties, because, unless the knowledge existed at the time the indorsement was made that this use was to be made of the note, and that it was for the puipose of obtaining credit with the payee thereof, notice that the indorsement had subsequently been used for the purpose of taking up a note not due, or past due, would not in any way affect the respondent’s legal rights. There was an allegation in the complaint that this note had been delivered to the plaintiff for value. This allegation was admitted; and it could not be denied, even if such knowledge had come to the defendant subsequent to the making of the indorsement.
In the case of Coulter v. Richmond (59 N. Y. 481) the fact was recognized that knowledge of -the purpose for which a note is intended to be used may be inferred from circumstances. The evidence in that case showed that for three years, respectively, prior to the making and delivery of the note sued upon, the maker had borrowed of the plaintiff the same bonds, giving each year as security for their return a note for $5,000, signed by the maker and the defendant, the latter being surety. Upon each delivery of a new note the prior note was taken up, and when the note in suit *346was .delivered the bonds were purchased, and the last note given for the loan of the bonds was taken up. The form of the paper which had been previously given indicated that it was intended to be used to obtain a credit with the payee. The obligation theretofore had been that of surety, and the form of the security in the last transaction was changed to that of indorser; the note ran for a year, • as did the previous obligations upon which he had been surety; and that it was not an ordinary commercial, transaction appeared, because the term of the note was longer than that of ordinary commercial paper. The note was made payable at the house of the payee, the place of payment indicating a purpose or expectation that the payee would hold it until it was due. The court held that from these facts, when this subsequent security was given in continuation of this business, although in a different form, the inference might be drawn that the indorser knew the purpose of the note; and that the place of payment was a circumstance inconsistent with the idea that the payee was to become a mere indorser — a condition of proof which is entirely different from that in the case at bar, the only evidence of any connection between the respondent and the plaintiff being that, some five months before, his firm had given a note which had become due and which he had the right to assume had been paid, there being not the slightest evidence in the case to show that the respondent had even a suspicion that it had not been paid.
In one of the opinions it seems to he .assumed that, because Carpenter is dead and cannot testify as to.what took place between himself and Roderick at the time he asked Roderick to indorse the note in question, assumptions may be indulged in against Roderick which could not have obtained had Carpenter been living and able to testify. It -seems to me to be introducing a new rule of evidence to hold that because a witness has died who might have testified to a fact, therefore, that fact may be assumed.
The learned judge, in the opinion referred to, also raises a ques- ' tion regarding the sufficiency of the denial contained in the answer to set forth -the issue which was investigated at the trial. It was assumed during the progress of the trial that the answer was sufficient. No point of its insufficiency was made either upon the oral argument of this appeal or in the points of counsel; and it .would *347seem to be rather late, upon the decision of an appeal, to question the sufficiency of pleadings which are conceded by the parties tobe proper for the raising of the issue tried. Parties are bound by the practical construction which they put upon pleadings during the progress of 'a trial, in the same manner that parties are bound by the practical construction which they put upon contracts in the execution thereof ; and- forced interpretations of pleadings will certainly not be indulged in for' the purpose of reversing a judgment, the result of a trial, in which, by the concessions of the parties, the pleadings have been deemed sufficient.
The judgment appealed from should be affirmed, with costs.
O’Brien, J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.