Fowler v. Strickland

Gray, J

The note sued on being an accommodation note, and the action between the original parties, the consideration was d mbtless open to inquiry. But the note was made for the accommodation of the defendants, the makers; not of the plaintiff, the payee and indorser. The defendants, upon negotiating to Loomis the note thus indorsed by the plaintiff for their accommodation, received from Loomis the whole amount of the note, and were responsible to an equal amount in an action on the note by Loomis or any lawful holder. The plaintiff had the same right as any other person to purchase the note from Loomis for such price as might be agreed on between them. Even if, by the terms of such *554 .til agreement, Loomis had retained any interest in the proceeds of the note which he delivered to the plaintiff, the latter, in an action against the defendants on the note, could have recovered the full amount thereof, although he might have held a part cf the proceeds in trust for Loomis. If he purchased the entire interest of Loomis in the note, at the time of its delivery by Loomis ■ to him, he might recover the whole amount to his own use. The" defendants having received the whole amount of the note at the time of its original negotiation, and being now no longer liable to any action by Loomis, the amount of their liability in this action against them as makers of the note is not affected by the question how much the plaintiff paid to Loomis, or whether the sum recovered will belong to Loomis or to the plaintiff. If the note had been made by the defendants for the accommodation of the plaintiff, a different case would have been presented. Johnson v. Kennion, 2 Wils. 262. Reid v. Furnival, 5 C. & P. 499, and 1 Cr. & M. 538. Wiffen v. Roberts, 1 Esp. 261. Babson v. Webber, 9 Pick. 163. Ellsworth v. Brewer, 11 Pick. 316. Pinney v. McGregory, 102 Mass. 186. McGregory v. McGregory, ante, 543. Allaire v. Hartshorne, 1 Zab. 665, 671.

Exceptions overruled.