Prior to March 14, 1912, the New York and Brooklyn Brewing Company, being indebted to the defendant Doyle, delivered to him as collateral security for the payment of such indebtedness ten $1,000 bonds of the Ernest Ochs, a corporation of the city of New York.
On March 14, 1912, the defendant Doyle, who was a director and the ¡treasurer of the Metropolitan Dairy Company, of the city of Brooklyn, N. Y., being desirous of obtaining the sale and delivery to the said dairy company by the patrons of the Colchester Creamery of the county of Delaware, N. Y., of the milk made upon their farms, and as a necessary inducement to said patrons to make such sale and delivery, proposed to them that he deposit with James A. Robinson, of Walton, N. Y., who had been and then was acting as the representative of the said Doyle, and of said dairy company, and of Flugge, its president, in inducing said patrons to sell their milk to said dairy company, five of said bonds, of which he stated he was the owner, as collateral security, and as a guaranty to said patrons for the payment on the fifteenth day of each month for the milk delivered during the preceding month. This proposition was assented to by said patrons, and such deposit of said bonds was made on that day by said Doyle with said Robinson, in whose possession they have since been. Under such agreement the bonds were to remain as such guaranty and collateral security until such time as two-thirds of said patrons should consent to the release and return thereof. This consent has not been given, but has been asked and refused.
On June 12, 1912, the New York and Brooklyn Brewing Company having reduced its indebtedness to said Doyle .from $10,000 to $5,000, gave him a new note for the latter amount, and he returned to the brewing company the old note and five of said bonds, the remaining five bonds being retained by him as collateral security for the payment of the $5,000 note.
The patrons of said creamery, relying upon such representations of said Doyle, and the security afforded by the pledge of said bonds so deposited with said Robinson, and without any information whatever that the New York and Brooklyn Brewing Company, or the plaintiff, or any person other than said *648Doyle, had, as pledgor or otherwise, any interest whatever in said bonds, sold and delivered the milk from their farms to said dairy company, at the Colchester station, which was operated by said dairy company, from April 1, 1912, until January 14, 1914, upon which day the indebtedness of said dairy company to said patrons for milk amounted to upwards of $4,500, no part of which has been paid.
Defendant Doyle ceased to be a director of said Metropolitan Dairy Company October 1, 1913. On January 14, 1914, the day before the bills for the November milk became payable, said dairy company was adjudged a bankrupt, for which a receiver and later a trustee were appointed.
No claims against the dairy company have been filed by any of the patrons so delivering milk to the Colchester station, or demand of payment thereof made upon either said receiver or trustee, and while the evidence does not disclose whether there are assets of. the dairy company, the answer of the defendant Robinson alleges that there are no assets whatever.
On April 4, 1914, the plaintiff, which by merger in January, 1913, of the New York and Brooklyn Brewing Company and the Consumers’ Park Brewing Company, had acquired all the assets of both corporations, having made demand of said Robinson for the delivery to it of said bonds, which had been refused, the bonds then being advertised to be sold to pay said milk bills, instituted this action demanding an accounting of defendant Doyle, the indebtedness to whom had been reduced to about $900, which had been tendered by the plaintiff to said Doyle and demand made upon him for the surrender of said bonds, and also demanding a judgment declaring said five bonds so held by the defendant Robinson to be the property of the plaintiff, and that he be required to surrender the same to the plaintiff.
The foregoing facts are practically as stated in the report of the referee before whom the action was tried, who also found that from the time of making the pledge until after the bankruptcy of the dairy company the relation of the defendant Robinson to said patrons was solely that of trustee of the express trust; that he was not at any time during said period the agent of said patrons, or with privity of relationship between him *649and them, except in so far as he was charged in his capacity as such trustee with the duty of possession of said bonds; that during such period he had no knowledge or information that said Doyle was not the owner of said bonds, nor that the plaintiff, or the New York and Brooklyn Brewing Company, claimed to have any interest in said bonds; nor was the fact that Doyle did not own the bonds brought to his notice in any manner sufficient to put him upon inquiry, and that his action in all respects was characterized by honesty and good faith.
As conclusions of law the referee found that said patrons were bona fide pledgees of said bonds for value before maturity, to guarantee the payment of sums unpaid for milk so sold and delivered, and without notice of the plaintiff’s equities in the bonds, and dissolved the injunction pendente lite, restraining the sale of the bonds, and dismissed the action as to defendant Robinson, with costs.
From the judgment entered upon the decision of the referee this appeal has been taken. A careful reading of the record convinces us that the findings and conclusions of the learned referee are fully justified by the evidence.
The appellant concedes that the only legal questions involved in this case are whether the defendant Robinson in his capacity of trustee is the agent of the patrons or of Doyle, and whether the patrons are innocent purchasers for value. The plaintiff claims that Robinson was the agent of the farmers, which was clearly disproved by the evidence, and that he received sufficient notice to put him upon inquiry as to the nature of Doyle’s possession of the bonds.
Unquestionably the negotiating of the bonds by Doyle, in breach of faith, constituted a defect in his title thereto, and thereby placed upon the holders the burden to prove that they acquired the title as holders in due course. (Neg. Inst. Law [Consol. Laws, chap. 38; Laws of 1909, chap. 43], §§ 94, 98.)
However, to constitute notice of a defect in the title of Doyle the holders must have had actual knowledge of the defect, or knowledge of such facts that their action in taking the instrument amounted to bad faith. (Neg. Inst. Law, § 95.)
If the facts known to the holders should have led them to *650inquire, and by inquiry they would have discovered the real situation in a commercial sense they acted in bad faith and the law will withhold from them the protection that it would otherwise extend. (Ward v. City Trust Co., 192 N. Y. 61.)
‘ ‘ Mere surmise or suspicion is no longer sufficient to put a purchaser of negotiable paper upon inquiry. The facts or circumstances to put him upon inquiry must be such as to show dishonesty or bad faith on his part in refraining from making the inquiry.” (Hibbs v. Brown, 112 App. Div. 214; affd., 190 N. Y. 167; Perth Amboy Mut. Loan Assn. v. Chapman, 80 App. Div. 556; affd., 178 N. Y. 558.)
“The holder’s rights cannot be defeated without proof of actual notice of the defect in title or bad faith on his part evidenced by circumstances. Though he may have been negligent in taking the paper, and omitted precautions which a prudent man would have taken, nevertheless, unless he acted mala tide, his title, according to settled doctrine, will prevail.” (Cheever v. Pittsburgh, etc., R. R. Co., 150 N. Y. 59.)
The bonds in question were payable to bearer, were not yet matured, were lawfully in the possession of Doyle, were accepted by the pledgees in good faith and for value, and in reliance upon the statement by Doyle that he was the owner thereof, and without sufficient notice of facts, at any time, to put either Bobinson or the patrons upon inquiry as to any defect in title. The pledgees were, therefore, holders of 'the bonds in due course, free from any defect of title of prior parties, and free from any defenses available to prior parties among themselves. (rieg. Inst. Law, §§ 91-96.)
Ho injustice will be done by affirming the judgment.
Doyle having as to the plaintiff wrongfully converted the bonds, and having as to the patrons wrongfully induced them upon the faith of the pledge of the bonds, and his ownership of them, to give credit to the Metropolitan Dairy Company, should answer to the plaintiff for the bonds, which the evidence would indicate that he is able to do.
The judgment should be affirmed, with costs.
Judgment unanimously affirmed, with costs.