Sacket's Harbor Bank v. President, &c. of Lewis Co. Bank.

take a quantity of butter to the amount of upwards of $10,000; that they sold this butter to the defendants, which, together with the sum of $9,000 in cash paid by the plaintiffs, at that time, to the defendants, formed the consideration for the bills of exchange so sold by the defendants to the plaintiffs; and the payment whereof was so guaranteed as aforesaid. The plaintiffs also proved that the bills of exchange were not paid at maturity; excepting the three first mentioned in the guaranty, and amounting to $7,012,69, which they admitted were paid when due. And they claimed to recover, either on the counts upon the guaranty, or on the common counts, the amount due on the other bills of exchange, or the balance of the aggregate of the said $9,000 cash advanced, and of the amount of said butter sold at the agreed prices, deducting therefrom the amount of said three drafts, which were admitted to be paid. And the plaintiffs having rested, the defendants moved for a nonsuit; and the justice who tried the cause decided that the contract between the plaintiffs and defendants, (out of which the guaranty arose,) being in part for the sale and purchase of butter, was void; and that the plaintiffs could not recover on said guaranty, and could not recover for the price of said butter or any part thereof; and he ordered the plaintiffs to be nonsuited. The plaintiffs excepted, and filed a bill of exceptions.

C. P. Kirkland, for the plaintiffs.

H. W. Robinson, for the defendants.

By the Court, KING, J. The 5th section of the plaintiff's charter provides that said corporation shall not, directly or indirectly, deal or trade in buying or selling any goods, wares, merchandise, or commodities whatsoever, unless in selling the same, when truly pledged by way of security for debts due to the said corporation. The charter of the defendants contains a similar provision. It appears from the case, that the plaintiffs obtained the butter-the selling of which is held to constitute the illegality of their contract with the defendants-in settlement of a debt

Meakim v. Anderson.

due them by Gordon & Brown; and thus, it seems to me, they had, even within the terms of their charter, power to sell it.

As to the incapacity of the defendants to buy. The object appears to have been to borrow from the plaintiffs, money for the defendants' purposes. The plaintiffs had some money and some butter which they had a right to sell. The defendants agree to take the butter at its market price, and also money of the plaintiffs, and repay them at a future day, the amount of money loaned, and the price of the butter.

It appears to have been an isolated transaction of buying on the part of the defendants, and of selling on the part of the plaintiffs, and hardly within the restriction of the charter which prohibits dealing or trading in, buying or selling goods, &c.; and moreover, a lawful transaction, within the principle of Potter v. The Bank of Ithaca, (5 Hill, 490,) where, under an express direction that the discount operations of the bank should be conducted at Ithaca, and not elsewhere, a single discount made within the city of New-York, was not considered within the prohibition; and to the same principle see Suydam v. The Morris Canal and Banking Company, (5 Hill, 491, note (a); S. C. 6 Hill, 217, in error.)

For this reason it seems to me, the contract between the plaintiffs and the defendants was not void, and the nonsuit should not have been allowed; and therefore, that the motion for a new trial should be granted.

[NEW-YORK GENERAL TERM, June 14, 1851. Edmonds, Edwards and King, Justices.]

MEAKIM US. ANDERSON.

In an action upon a promissory note, a total failure of the consideration of the note, or that it was given without consideration, may be proved on the trial, under the plea of the general issue, without notice.

The testimony of a witness on the trial, that some years previous he had received a letter from the plaintiff in the action; that he had searched for it

Meakim v. Anderson.

among his file of letters and other papers, and in every other place where he could think it might be, and could not find it; that he did not think he had seen it since he received it, and that he believed it to be lost; is sufficient proof of loss to admit parol evidence of the contents of such letter. It is in the discretion of the judge who tries the cause, to permit or refuse the re-examination of a witness who has been examined and cross-examined, and permitted to leave the stand; and the court, at the general term, will not review the exercise of his discretion.

And where the plaintiff wished to recall a witness, originally introduced by the defendant, that he might explain part of his testimony, on the ground that it had been misunderstood; and the judge stated that the witness had, both in his original and cross-examination, made the statement which he desired to explain, and that he did not think proper to permit such explanation when there was no doubt as to what the witness stated, and after a conference, by the witness, with the plaintiff's counsel, it was deemed a proper exercise of his discretion.

A general exception to the charge of the judge will be unavailing, where it is not perceived that any error of law is committed in the charge, and the whole dispute in the case is on a question of fact, and that is left to be determined by the jury.

Testimony to impeach a witness does not furnish ground for a new trial, when applied for upon an allegation of newly discovered evidence.

A new trial will not be granted to a plaintiff on the allegation that he was surprised, on the trial, by the evidence of a witness for the defendant, when it appears that he was informed by the defendant, before the suit was brought, that his defense would be the fact stated by the witness, and that he was also at the same time informed by the witness what the fact was; and his testimony on the trial corresponded with his previous statement to the plaintiff.

THIS was an action commenced May term, 1846, by the filing of a declaration pursuant to the statute, on a note to the plaintiff for $89 with interest, executed by the defendant Daniel M. Anderson as principal, and the defendant John Anderson as surety, payable eight months after date, and dated 20th April, 1842. The defendants severed in their defense, and each pleaded the general issue only, without any notice of special matter.

The cause was tried at the New-York circuit in March, 1848, before Justice Edwards and a jury. On the trial the plaintiff proved the execution of the note and the amount then due upon it, and rested. The defendant's counsel, in his opening, stated to the jury that his defense would be that the note sued on was

Meakim v. Anderson.

without any consideration, and that there was a total failure of consideration, and that the note in suit was given for a debt which had been paid, and which fact was not known to the defendants at the time the said note was given. The plaintiff's counsel objected to the introduction of such defense, on the ground that the pleadings furnished no notice of it, and no special notice of the same had been given. The objection was overruled by the court, and the plaintiff's counsel excepted. A witness, Alpheus Dimmick, was then sworn and examined on the part of the defendant, who testified that he resided at Bloomingburgh, Sullivan connty; that the body of the note offered in evidence was in his hand-writing; that he received a letter from the plaintiff at the time the note was drawn; that the plaintiff then resided on Long Island and the defendants at Bloomingburgh; that the letter was lost. On being examined by the plaintiff's counsel as to the loss of the letter, the witness said, "I have searched for it among my file of letters and other papers, and in every other place where I could think it might be, and can not find it. I do not think I have seen it since I received it. I believe it to be lost." The plaintiff's counsel then objected to the introduction of parol evidence of the contents of

the letter, on the ground that no sufficient evidence of VARD had been furnished. The court overruled the objection and the plaintiff's counsel excepted. The witness then said, "SCHOOL stance of the letter was, that I was to receive a note made by Daniel M. Anderson, with John Anderson as surety, ndBRARY. doing I was authorized to discharge a mortgage of $150 given by Mary Thompson." The same witness further stated, tha finding he had no authority to give a satisfaction, he drew the satisfaction piece and sent it to the plaintiff by mail to have it acknowledged at his residence, and it was returned to the witness by mail, and he then procured it to be put on record, and took the note in question. He also stated that Mary Thompson was married to Daniel M. Anderson, one of the makers of the note, before the note was given. Another witness of the defendants, Jacob C. Thompson, testified to many interviews between Mary Thompson and the plaintiff; one in the fall of 1834, when the VOL. XI.

28

Meakim v. Anderson.

witness made some settlement upon a note she, Mary Thompson, had given the plaintiff, to the amount of somewhere about $100; and he was also present at an interview between them at Bushwick, a couple of years afterwards, perhaps, and then made a settlement between Mary Thompson and the plaintiff; calculated the interest on some indorsements which had been made on a former note, and a new note signed by Mary Thompson was given for the balance. She said that if Samuel Thompson had paid the plaintiff so much money, she would not have owed the plaintiff any thing; plaintiff said Samuel had not paid him; she was much grieved and mortified because Samuel had not paid over the money to the plaintiff, and shed tears. Witness did not know how much money she said she had given to Samuel Thompson; he presumed that the new note which he drew, as above stated, was not for $100, but it was over $80. This was the last interview before Mary Thompson died. There were some little accounts between her and the plaintiff besides the note; the plaintiff had from time to time lent her money, and she paid him in different ways, in produce, such as butter, cows, &c. Samuel Thompson was then called, and being sworn, said: Mary Thompson gave him some money to take to the plaintiff thirteen or fourteen years ago (the then) last December; the amount was over $90, to pay off a note which she said the plaintiff held against her; he paid it to the plaintiff, he thinks it was thirteen years ago that month (of the trial); this witness said. he never saw Mary Thompson after that, nor was ever up where she lived until after her death. He first saw the defendants two years ago (the then) last January, and told them he had paid the money to the plaintiff. On his cross-examination, the witness said he carried the money from Mary, she did not give him all money, $30 in gold, and a note drawn in her favor by Mr. Beyea, for about $60. He made the payment to the plaintiff by giving him three cows and a horse; it was in Flushing, Long Island; he sold the cows and exchanged horses, and the plaintiff gave him $120 boot, and took a wind mill; the witness did not recollect what amount of cash was given at that time; this was in March, about the 20th, he did not see the note at