The defendant was sued and judgment recovered against him, upon a draft payable to his order, indorsed by him, drawn by B. H. Cheever upon Robert Rantoul, Jr., for, and accepted by him for, the sum of $2,250. The draft was received by the defendant after its acceptance by Rantoul, in payment of the purchase price of a piece of land in Minnesota. Rantoul, therefore, was the party primarily bound for the payment of the money.
The defendant indorsed and transferred the draft to Brook, Tyson & Rehn, to whom he at the time was indebted. And they, after its maturity, recovered a judgment for the amount unpaid upon it, against Rantoul, the acceptor. After its recovery they instructed their attorney to receive from Rantoul, the acceptor and judgment debtor, a sum less than the amount of the judgment. And in pursuance of the instruction he did receive $951.49. This amount was actually advanced and paid by the plaintiff’s testator, Patrick Riley, the marshal, who then held the execution for the collection of the judgment. And the attorney executed and delivered, in the names of his principals, an assignment of the judgment and draft to the > plaintiff’s testator. But, in the assignment, it was provided that the draft should be held by Riley, the testator, “in trust for his own use to collect of said Rantoul (and others) the above sum, and then to re-assign the same to us.” The sum here referred to was the money received by the attorney from the testator. And it was clearly the purpose of this clause to strictly restrict his right of recovery on the draft to the amount paid by him to the attorney of the holders. It gave him an interest in the draft to that extent, and precluded him from using it for. any other purpose than securing his re-imbursement. They might have proceeded against the acceptor, or either of the other parties to the bill, for the payment of the balance of their debt. That was a right which they had, and they could transfer and assign it with the draft, or so restrict the interest assigned as to retain it themselves. They adopted the latter course. The form of the assignment executed by them is consistent with no other design. And that limited the testator’s interest in the demand, and his right to recover upon it, to the re-imbursement of the amount he had paid before the assignment was made to him by the holder’s attorney. He had no right to recover any thing beyond that, and so far as the judgment exceeds that, it was erroneous and unwarranted.
This letter contained the admission of the testator that he had advanced his money at the acceptor’s request and on his promise of repayment, and it was admissible in proof of the fact, against his personal representatives as well as himself. 1 Greenl. on Ev. (12th ed.), § 189.
It directly tended to prove the allegation made in the answer, that the draft had been paid. For .if the testator paid the money at the request of the acceptor, as the letter offered stated he did, that made it, so far as the indorser was concerned, the acceptor’s payment. It was so much paid toward the extinguishment of the draft, out of. which no right of action could arise beyond that created by the request and payment; and that was confined to the
Beyond that it may well be doubted whether the evidence was sufficient to charge the defendant as indorser. The bill was not payable at any particular place, and it was not presented personally to the acceptor. Neither does it appear from the certificate of the notaiy that the acceptor was absent from his office when the bill was presented there. What he has said in his certificate on the subject is that he went with the draft to the acceptor’s office, “And speaking with a person there, presented said bill, and requested payment according to the terms thereof. Whereto he replied that no. one there had funds to pay the same.” The person 'found is not stated to. have had any apparent charge of the office, or any employment there, or any right or authority to act for or represent the acceptor.. Whether this extremely loose proceeding will, in any view, sustain the allegation that a legal presentment of the draft was at any time made to the acceptor for payment it is not necessary to decide, since there must be a new trial on the grounds already considered. But it may be added in this connection that the proof to charge the indorser seems to have been further defective in the circumstance that the form or contents of the notice sent to him was not proved upon the trial. But without deciding the effect of these proceedings, it is sufficient to say that the referee should have limited the recovery to the amount advanced by the testator, as long as no" right of recovery beyond that had been transferred by the assignment. And'the letter written to the
The judgment should be reversed and a new trial ordered, with costs to abide the event.-
Davis, P. J., and Bbady, J., concurred.
Judgment reversed and new trial ordered.