I concur in the opinion except as to its treatment of the Dr. Marcy note. The finding — paragraph fifteen — that the amount paid by Dr. Marcy to Mrs. Ives on this note was $2,888, should be corrected, and the amount so paid stated to be $1,500, and the judgment corrected to correspond with the finding thus corrected.
The Rowe Company was in the lumber and building business at New Milford, and engaged in building operations for Dr. Marcy at White Plains. Henry C. Ives, son of the defendant, was the secretary and treasurer of this Company. It was insolvent in June, 1906; at which time Mrs. Ives was an accommodation indorser of notes of the Company discounted by the New Milford National Bank to the amount of $7,500. Mr. Ives, in order to protect his mother upon her indorsements, and while the Company was insolvent, collected in all of the assets of the Company he could, and turned the proceeds over to the bank in payment of these indorsed notes. With this purpose he, as secretary and treasurer, indorsed in blank a note for $2,888, *Page 697 given by Dr. Marcy to the Company on account of said building operations.
The trial court finds this note was paid in full to Mrs. Ives, and includes this amount in the judgment. The evidence shows that only $1,500 was paid on this note, and the check so paid turned over to the bank and applied by it on the notes upon which Mrs. Ives was an indorser. Mrs. Ives ought to be held liable only for the proceeds of the note which came to her or to the bank for her benefit.
The only evidence the plaintiff produced upon this subject was that of Henry C. Ives. Mr. Ives testified that after the Company had indorsed over this note to Mrs. Ives, Dr. Marcy came to the Company with Mr. Fred Williams, an attorney of New Milford, and showed the Company that certain payments had been made by him for work done on said building operation on account of which this note had been given, and which payments had not been turned into the Company, and so had not been indorsed on the note, and thereupon Mr. Ives indorsed upon the note these credits, reducing it to $1,500, and that subsequently Dr. Marcy paid Mrs. Ives by check $1,500, the balance due upon this note, and she turned the check over to the bank.
The burden of proving the amount due from Mrs. Ives was upon the plaintiff. He did not attempt to put Dr. Marcy or Mr. Williams on the stand, nor did he attempt to introduce the note or the check by which Mr. Ives said the note was paid, nor did he attempt to prove the transaction from the books or officials of the bank. All of this testimony was, so far as appears, available.
Instead of attempting to prove that the testimony of his own witness, Mr. Ives, as to these payments and this check was incorrect, the plaintiff introduced no other *Page 698 evidence relating to the Dr. Marcy note except the ledger sheet of the Company showing the balance as $2,888. But Mr. Ives fully explained this, and his explanation could have been readily attacked if incorrect. The plaintiff should be bound by the uncontradicted testimony of his own witness.
Paragraph fifteen of the finding should be corrected to correspond with the proof, and the judgment reduced to correspond with the corrected finding.
In this opinion RORABACK, J., concurred.