The surrender of an unendorsed promissory note to the maker by a mere naked depositary is no consideration for a promissory note from the maker to the depositary as payee.
In such a case, the bailor — payee of the original note — may recover of the maker, in assumpsit, on the original note.
Justice may require the substitution of a new party for the original plaintiff, by an amendment of the writ and declaration.
SMITH, J.
The plaintiff cannot recover. William Gale had no authority to surrender the Lee note and take a note payable to himself. There is a total failure of consideration. A judgment in this suit would not bind Lee's administrator, if one should be appointed, nor prevent his recovery upon the original note. When an administrator of Lee's estate is appointed, he may be made plaintiff instead of Willoughby. Hazen v. Quimby, 61 N.H. 76; Buckminster v. Wright, 59 N.H. 153; Boudreau v. Eastman, 59 N.H. 467; Chauncy v. Ins. Co., 60 N.H. 428.
Case discharged.
ALLEN J., did not sit: the others concurred.
An administrator upon the estate of Lee was subsequently appointed, who came in, and was substituted for Willoughby as plaintiff, and, on a count for money had and received, judgment was rendered against the defendants for the amount due on the Lee note.