NEWBURY BANK v. SAYER, 74 N.H. 598 (1906)

65 A. 1117

NATIONAL BANK OF NEWBURY v. SAYER.

Supreme Court of New Hampshire Grafton.
Decided November 7, 1906.

ASSUMPSIT, upon a bank check. Transferred from the November term, 1905, of the superior court by Chamberlin, J.

Smith Smith, for the plaintiffs.

Batchellor Mitchell and George F. Morris, for the defendant.

WALKER, J.

In addition to the facts reported upon the former transfer of the case (73 N.H. 595), it appears by an amendment that the defendant did not intend to make Plant a present of the check, but gave it to the plaintiff at Plant’s request, to prevent the plaintiff’s taking and selling the horse upon the mortgage, and that the plaintiff then delivered to the defendant the mortgage and note, with the indorsement on the mortgage, and intended thereby to transfer to the defendant the property interest it had in the same. In view of the verdict for the plaintiff, this additional finding of fact does not necessarily disclose error of law. If, as reasonably may be inferred in support of the verdict, the real consideration for the defendant’s check was the giving up by the plaintiff of its purpose to take the horse under an honest belief that it had a right to do so, it is immaterial in this action whether any title passed to

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the defendant by its delivery of the note and mortgage to him. If, however, the transaction amounted merely to a purchase by the defendant of the unindorsed note and mortgage already paid, it would seem under the authority of Dunn v. Meserve, 58 N.H. 429, that there was a complete failure of consideration for the defendant’s check, and that the verdict must be set aside. But as such is not the necessary interpretation of the verdict, in view of the reported facts, it must stand.

Case discharged.

All concurred.