54 A.2d 363

ALBERT AMODEO a. v. CHRIS A. ALLEN.

No. 3644.Supreme Court of New Hampshire Hillsborough.
Decided July 2, 1947.

An accommodation maker of a promissory note is liable to the promisee as a holder for value although the promisee knew at the time of taking the instrument that he was merely an accommodation party to the co-makers. Exceptions to the denial of motions for nonsuit and directed verdicts raise only the question as to whether or not there is sufficient evidence to justify the findings of the Trial Court.

ASSUMPSIT, on a promissory note dated February 13, 1942, in the sum of $800 payable to the plaintiffs sixty days after date with interest at two per cent per month signed by the defendant and two other co-makers. The defendant was an accommodation maker for the other two signers, one of whom was previously indebted to him. The signatures of the makers were not disputed. The plaintiffs admitted payments on principal totaling $175 claiming the balance unpaid. The defendant claimed that the note was paid except for $73.

The court found “the amount due the plaintiffs is in excess of $1,000 and renders a verdict for the plaintiffs for $1,000” since that amount was the limit of the ad damnum in the action.

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Transferred by Blandin, C. J., on defendant’s exceptions to the denial of his motions for a nonsuit, a directed verdict and the failure to set aside the verdict as against the law and the evidence.

Other facts appear in the opinion.

Samuel A. Margolis (by brief and orally), for the plaintiffs.

Sullivan Dolan (Mr. Dolan orally), for the defendant.

KENISON, J.

While “the law is well settled that the accommodation party is not liable to the party accommodated either at common law . . . or under the negotiable instruments law” (Perley v. Wing, 82 N.H. 299, 300), the defendant is liable to the plaintiffs as holders for value “notwithstanding [they] at the time of taking the instrument knew him to be only an accommodation party.” R. L., c. 366, s. 29; 5 Uniform Laws Anno. s. 29.

Consideration of defendant’s exceptions to the denial of motions for a nonsuit and a directed verdict raise only the question whether there was any evidence upon which the Court could reasonably find that the balance of the note plus interest equals $1,000. Bank v. Malloy, 93 N.H. 197. There was testimony by one of the makers that he gave plaintiffs’ agent a note of $600 of a third party, receiving in return $150 in cash and a receipt for $350. The receipt was not produced or its absence satisfactorily explained. Subsequently the agent notified the defendant: “Have some sort of an arrangement whereby if we are lucky and the note which I am holding is paid, there will be a credit of $350 on your obligation.” There was no evidence that this note was ever paid and the Trial Court could properly find that this was not a collectible credit which was or should have been applied on the defendant’s note.

The credibility of the witnesses as to what payments were made presented factual matters for the Trial Court which, when supported by the evidence, must be upheld on appeal. See, McKeen v. Cook, 73 N.H. 410. The defendant’s exceptions are therefore overruled and the order is

Judgment on the verdict.

BLANDIN, J., did not sit: the others concurred.

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