Roark v. Turner

Burning J.

dissenting.

One of the judgments of-this Court, is, that the decision of the Court below, overruling the plea, was right. From that judgment, I dissent. I think that the plea was a good plea.

Roark was the immediate endorser of Turner, the plaintiff *459below. There was then a contract of endorsement as between them two. The note endorsed was for $1,950. The plea was, that Roark did not receive for his endorsement, as large a sum as $1,950, by about $200.

The endorsement amounted to a promise by him, to pay $.1,950, in consideration of receiving $1,750. Now I «ay that, for this promise, there was a want of consideration, to the extent of $200. The case differs in no material respect, so far as I can see, from the case in which, the maker of a promissory.note, makes the note for $1,000, and receives from, the payee, only $500. In each case, it is equally tru,e, as it seems to me, that there is a partial want of consideration for the promise.

And whenever there is a partial want of consideration for any promise, the promissor may plead it, to a suit on the promise, brought by the promisee. This is a general principle, which, I may, I suppose, assume.

But not only is the plea supported by this general principle ; there are a number of decisions by which, it is supported. Some of these I will give, as stated in the notes to Chit■ty on bills.

“Darnell vs. Williams, 2 Stark Rep. 166. Payee against acceptor of a bill for 19l. 12s. Defendant proved, that he had value for only 10/, and that he accepted for the rest, to accommodate the plaintiff. And, per Lord Ellenborough, though this, as to third persons, is a bill for 19/. 12a; yetas between these parties, the acceptance is for 10/. only; and that sum having been paid before the action, he nonsuited the plaintiff.” (Chitt. Bills, 81 Note i.)

So, in the present case, Roark having had value for only $1,750, is to be considered with respect to the other $2.0.0, as an endorser for the accommodation of Turner the endorsee. If he had had value for no part of the $1¿950, that he would have been an accommodation endorser, for Turner, as to the whole $1,950, none I suppose will dispute. The difference *460in the two cases is only one oí degree. At any rate, we must say, that he was an endorser without consideration, as to the $200.

“Barber vs. Backhouse, Peake Rep. 61. In an action on a bill of exchange, by the payee, the defendant paid part of the money into Court, and it appeared upon the trial, that there was no consideration for the other part; Law, however, urged, that the payment of the money into Court, admitted the bill was good for part, and if it was good in part, it was good in toto ; but Lord Kenyon declared himself clearly of a contrary opinion, upon which, the jury found for the defendant, and this case being afterwards mentioned by Lord Kenyon, in the course of argument, Law said he was pérfectly satisfied with the decision.” (Id. 83 note y.) In this case, the defendant was, it is likely, the drawer; and an endorsement, our case, is but a new drawing in favor of the endorsee, as payee.

Strongly to the same effect, are Weffen vs. Roberts, (1 Esp. Rep. 261, Chit. Bills 81, note k;) and Jones vs. Hibbert (2 Stark Rep. 304, Chit. 81, note k.)

These cases and others, of the same import, are, I believe, cited as authority, in Story on Bills ; Byles on Bills; and Bailey on Bills. They and the general principle aforesaid, show, I think that the plea was good.

It is to be remembered, that the case is not that of a sale of the note, without recourse on the seller. It is the case of a sale with recourse on the seller, a sale accompanied by his promise to pay the note, if the makers did not pay it. This promise makes the difference. Doubtless, if the owner of a note sells it without recourse, for less than it calls for, the purchaser acquires a title to all it calls for, and is not, when he collects it from the maker, liable to pay to the seller, the difference between what he paid the seller, and what he collected. In that case, although the amount paid for the note, ' is less than the amount it calls for, yet the purchaser takes *461the risk of the maker’s solvency; the risk of his having defences, &c. Consequently, it is not a case in which the seller can say that there was any want of consideration. Even in that case, however, great inadequacy of price, might be a badge of fraud, which would justify the nullification of the sale. But if he not only sells the note, but promises to see it paid, there must be a full consideration for that promise— to make the promise bind him, to pay the whole of the note; that is to say, there must be a consideration equal to the face of the note. So I think. Hence I dissent as aforesaid.