Opinion
Argued October 3, 1881
Decided October 28, 1881
Nathaniel C. Moak for appellant. John C. McGuire for respondent.
If the defendant had, before maturity of the notes, sought to enforce the judgment against Tong, he would have failed in face of an averment that by those notes the time of payment had been extended. They were made by Tong and Lynch as principals and were negotiable. They constituted a new contract, to which the plaintiff's intestate was not a party, and furnished a sufficient consideration for the extension of payment implied from the terms of the notes. ( Fellows v. Prentiss, 3 Denio, 512; Hubbard v. Gurney, 64 N.Y. 458.) The plaintiff, however, set this litigation in motion and was only entitled to recover upon proof that her intestate had not consented to this new contract. It is true that this involved a negative, but without it she had no cause of action. The burden or onus probandi would, however, be shifted by slight evidence and thrown upon the party who was to profit by the consent, if given, and who, therefore, might be supposed to have cognizance of it. The mutual assent which establishes an agreement between two or more persons is usually gathered from their acts or words in the presence of each other. When, therefore, it is conceded that one whose rights are to be varied by a transaction was not present when it was consummated, it is to be presumed, in the absence of any other evidence, that it was done without his consent. If it was given through an agent, or at another time, it must be so established by the party claiming the benefit of it. These principles apply here. Under the plaintiff's allegations the agreement for an extension, its mode of execution and its consummation by the actual making and delivery of the notes, was a single and complete transaction.
It follows, that the admission by the defendant without qualification, that the surety was not present when the notes were signed, relieved the plaintiff from the necessity of further proof. It was assumed by the defendant upon the motion for a nonsuit, that all the facts existed as alleged by the plaintiff, except those specifically pointed out. As the case then stood an extension of the time of payment had been granted to the principal debtor, by reason of which the sureties' own right of action was suspended, and the only fact wanting to complete the plaintiff's case was the non-consent thereto of the intestate This was supplied by the admission of the defendant and thus a prima facie case established. It was not error, therefore, in the trial judge to refuse to dismiss the complaint.
Second. The requests made by the defendant for findings in his favor stand wholly upon the evidence given by the plaintiff's assignor. The learned counsel for the appellant argues that the court had no right to disregard it. We think otherwise. Assuming that the narrative was in its words sufficient, it was for the judge to whom it was addressed to consider the credit due to the witness. He was the assignor of the judgment, bound, therefore, to maintain its validity ( Furniss v. Ferguson, 15 N.Y. 437); and thus interested to the extent of the sum involved in the controversy. He was testifying in 1878 to transactions that occurred in 1859. Was his memory faithful in retaining, so that he, if willing, could disclose them? After testifying to facts which it is now claimed by the respondent amount to "nothing more or less than a taking of the notes, reserving all rights against the sureties," "or, at most, as collateral security," he is asked by the court, "you agreed not to enforce the execution till the notes matured," answers, "until default was made in the payment," and then, "was that agreement you made in writing?" replies, "I don't recollect, it is so long ago; it might have been in writing and might not." He gave other evidence that would permit an inference to the contrary of the answer first quoted and which may be conceded sufficient to sustain the respondent's position. Whether it should be accepted and whether his statement that Tong told him that McNulty consented to the arrangement should be believed or not, were questions upon which the decision of the trial court is final. It cannot be said there is any peremptory rule of law which requires a tribunal to accept as true the testimony of an interested witness delivered from unfaithful memory. The finding of the trial court in this respect is warranted by evidence and is sufficient to sustain the judgment. It is unnecessary, therefore, to consider other propositions advanced by the respondent in support of it.
The judgment should be affirmed.
All concur.
Judgment affirmed.