Marvin v. M'Cullum
New York Supreme Court
ASSUMPSIT on a promissory note, dated October 13, 1820, made by the defendants, M'Cullum, and Merriam, for 200 dollars, payable on the first of January, 1821, to James £verffl or bearer, with interest. Plea, non assumpsit„ The cause was tried before Mr. Justice Woodworth, at the Otsego circuit, in September, 1821. The plaintiff proved making of the note.
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ASSUMPSIT on a promissory note, dated October 13, 1820, made by the defendants, M'Cullum, and Merriam, for 200 dollars, payable on the first of January, 1821, to James £verffl or bearer, with interest. Plea, non assumpsit„ The cause was tried before Mr. Justice Woodworth, at the Otsego circuit, in September, 1821. The plaintiff proved making of the note. The defendant called James Averill, the payee of the note, as a witness, who testified that he never owned the note, that it was never delivered to him, nor.in his possession, and that he never transferred it to any person ; but he said, that…
1Opinion of the CourtPlatt, J.
With deference, it seems to me, the Judge was mistaken in excluding the evidence offered by the defendants. The reason for rejecting that evidence, may be collected from the charge to the jury, to wit: That “ the note was not usurious in its inception, but was given for the purpose of being passed to Jlverill, for its full value.”
The mistake, I apprehend, consisted in the misapplication of the terms “ purchase” of the note; and the “ inception” of the note. By its inception, I understand, when it was first given; or when it first became the evidence of an existing contract. It has no legal…
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