Albuquerque daily citizen. [volume] (Albuquerque, N.M.) 1895-1903, 1898-10-24
OVERDUE rROnrssoRY NOTES.
Purchaser Must Assume All DeferSes
which NAV Be ShOwn.


Whiea May Be shown.
In case No. 500, John A. Lee and Wi
ley NJ. Weaver, appellants, Va. Neill b.
Field, receiver, appellee. from the dis.
trtct court Of BernalillO county. AssOci-
ate Justice Parker handed down an
opinion, which was %cOneurred in BY
Chief Justice Mills aud Associate Jus.
tiees McFie aud Leland. Justice Crum-
packer not sitting In the hearing. revers.
ing the judgment Of the lower court and
REMINDING the cause for new trial.
This was an action OF assumpsit
brought In the district court Of Berna-
lilo county by appellee IA receiver Of the
New Mexico Savings Bank aud Trust
company, TO recover on a note sighed by
% J. A. johnson as maker, and by ap-
peliBnts "a accommodation makers. The
note was payable 10 one Emma j. Harris,
and by her discounted to the Bank OF
Commerce, who presented IL to the Al
bUquerque National bank. where 1t was
payable nj maturity, and received the
money on 10. Nearly one month after
maturity the Albuquerque National
bank sold and delivered the note, which
IL had until that time carried a. a cash
ttemin place Of money II had paid to the
holder, TO the savings bank Of which ap.
pellee Is receiver, attached TO the iudl-
ylfual note OF said johnson aud upon
which was endorsed q memorandum.
Note Of J. A. Johnson, ia Lee and n.
NJ. Weaver. collateral" AT the time OF
the making OF the note sued on, the Al
buqueigue National bank was interested
In procuring a settlement to be effected
between johnson and Harris, and pro.
cured appellants to sign the note sued on,
a. accommodation makers, aud to secure
ihem against loss, executed aud dellv.
cred 10 appellants a bond OF indemnity,
conditioned to indemnify and save harm.
les1 the appel lbnts,as indOfsers on said
note, and Ia tbs event said Lee aud
Weaver should have 70 pay said note or
any part thereof "a such endOrseTs, 10 10
imburse them Tor all moneys which they
might have 10 pay on account OF said
note. This bond Of indemnity was
offered In evidence by appellants and
excluded by the court upon objection by
appellee, Appellants offered 10 prove
that at the time Johnson gave the note
to the Albuquerque National bank he did
20 at the request OF the president OF the
bank aud upon the understanding that
The proceeds OF the same would be ap-
vlitd TO the payment OF the note sued on
IN this Gaze, and that the note sued on
was 10 be retained simply a q memo.
raudum OF the transaction. This proof
WAS excluded upon objection OF appellee.
40 The close Of the trial both sides moved
Tor an instruction for a verdict and, the
motion OF the appellee being granted,
the Jury found a verdict accordingly and
] ttaNaN.uUN Nraa nVNUWaA Nhawang Pho
Is-ues were mude up upon u declaration.
plea for the general issue, and similiter
under the common law system OF plead
ing formerly In force In New Mexico
Ia rendering the opinion, the supreme
court held,
A purchaser OF a note overdue takes II
suhj CT 10 all d%efenses which may be
shown against his assignor who acquired
u at maturity by paying the mpn6y due
thereon 10 the holder,
A bond Of indemnity against loea exc.
cuted by a third person 10 an aceOmmO
dalton maker OF the note Is an equity and
not q legal defense aud Il not properly
~plesdable or shown In evidence in al
action In law upon the note, under IN,
common law system, brought by tn,
holder who acquired the paper when 4
was overdue from the obligor,
Payment BY u stranger to prOmissor!
note OF the money due TO the holder with
out any agreement, express or implied
to purchase the same, eEtinguishes tn,
note.
II was an error to exclude evidence
tending TO show whether when a note 4
presented for payment the transaction
was payment or purchase OF the note,
When a stranger pays the money duI
on a note at maturity 10 the holder, II /
necessary, IN order TO constitute a pur
chase, that there ba an agreement, ex
press or implied. on the part OF the hOlde
70 sell, and on the part OF the purchase
to huy.
Il. W. Clancy for appellee, Childers !
DobsOn for appellants.