Evidence, Materiality. Bills and Notes. Payment. In an action by a bank against an indorser of the promissory note of a corporation indorsed also by the payee to the plaintiff which had discounted it, evidence that the defendant and the payee were directors of the corporation and that a receiver had since been appointed for it, rightly was excluded as immaterial.
In an action by a bank against the first indorser of a promissory note also indorsed by the payee to the plaintiff which had discounted it, it appeared, that after the liability of the defendant and the payee had been fixed by a protest for non-payment and after the bringing of the action, the plaintiff obtained as security for the note a personal demand note of the payee indorsed by his father and that afterwards the father at the request of the plaintiff replaced this note by a deposit of cash to be held as security for the note in suit. Held, that these facts constituted no defence, as the receipt of money from a third person not as payment, but merely as security, did not affect the rights of the plaintiff as against the defendant.
KNOWLTON, J.
This case comes before us on the defendant's exception to the exclusion of evidence and to the refusal of the judge to rule as matter of law that the plaintiff was not entitled to a finding.
The evidence that the defendant and William G. Titcomb were directors of the Roxbury Brewing Company and that a receiver has since been appointed for that corporation, was immaterial. It could not affect the liability of the defendant to the plaintiff on the note.
The note was made by the Roxbury Brewing Company with an indorsement of the defendant on the back, and was payable to the order of William G. Titcomb, who indorsed it to the plaintiff. The evidence tended to show that after the liability of both the defendant and Titcomb had been fixed by a protest for non-payment, the plaintiff obtained as security for this note a personal demand note of Titcomb, indorsed by his father Albert C. Titcomb, and afterwards, having especial need of cash, asked the father to replace this note with money, which was done. On the evidence, this cash appears to have been furnished by Albert C. Titcomb, to be held as security for the note in suit, which the bank was trying to collect from this defendant.
The receipt of money from a third person, not as payment of the note, but merely as security, did not affect the rights of the plaintiff against the defendant. The case is like National Bank of the Republic v. Conlan, 99 Mass. 181. Exceptions overruled.