Opinion
July Term, 1903.
Cyrus A. Peake, for the appellant.
Ralph Earl Prime, Jr., for the respondent.
The defendant is sued as the indorser of a promissory note made by Edmund J. Earl on April 3, 1902, for $300 at three months. The note is a renewal of one made on January 3, 1902, and the defendant asserts among other defenses that he indorsed the original note solely for Earl's accommodation, and that it was delivered to the plaintiff without consideration. The evidence tends to show the existence of a debt in favor of the plaintiff and against Earl on January 3, 1902, and that the note was given to secure it; and the main question upon the appeal is whether there must be a new trial because of the undoubted error of the learned court in refusing to charge "that value is any consideration sufficient to support a simple contract, and an antecedent or pre-existing debt is such value;" and in charging that "if this note was given to pay a pre-existing and past due debt, I charge that it is not a live and valid consideration between the parties." There was, however, no evidence tending to prove that the note was given to pay the debt, that the debt was canceled or relinquished in any way, or that time for its payment was extended, and the propositions of law referred to may be regarded for the purposes of this case as mere abstractions. The plaintiff testified positively that the note of January 3, 1902, "was not given to me by Mr. Earl for money he had previously borrowed and for goods he had purchased from me and owed me for. I gave Mr. Earl money for that note." Mr. Earl testified that he received a check from the plaintiff for the amount of the note preceding the note in suit less discount, adding: "I swear on oath before this jury that I received from Mr. Roseman $295.50 for that note dated January 3d 1902. I think I received that amount. I can't say whether any of it went for goods or not. I may not have received $295.50 from Mr. Roseman. I will not swear I did." There was other evidence given by both the plaintiff and Earl so contradictory and confused that the jury may very well have believed, especially in view of the fact that no check was produced, that the note was taken as security for a pre-existing debt, but as I have said, no one testified or suggested that the debt was given up, or that the plaintiff relinquished his right to sue upon it for a moment.
By section 51 of the Negotiable Instruments Law (Laws of 1897, chap. 612) it is provided that "an antecedent or pre-existing debt constitutes value." But the holder of the note must give up the debt either wholly or qualifiedly in order to constitute consideration. He must part with something — if not with the debt, at least with the right to sue upon it for some determinate period. The taking of the debtor's note raises no presumption that it is in payment of the debt, and there was here no circumstance or suggestion that the plaintiff extended the time for payment or did any other act which would have prevented him from surrendering the note and resorting to the original indebtedness. He tried the case on the issue solely of a money consideration given at the time of the taking of the note, without a pretense on the part of any one that it was taken in payment of a debt, and he cannot be permitted to disturb a just result by predicating error upon a refusal to charge upon an issue not embraced within the evidence. ( Kane v. N.Y., N.H. H.R.R. Co., 132 N.Y. 160, 166.)
The judgment and order should be affirmed.
GOODRICH, P.J., BARTLETT, WOODWARD and JENKS, JJ., concurred.
Judgment and order affirmed, with costs.