Hunt v. Glassell

CONREY, P. J.

By his original complaint in this action, filed on December 15, 1911, the plaintiff, as successor in right to Duquesne Brewing Company, a corporation, demanded judgment upon a certain promissory note for the sum of ten thousand dollars, dated September 25, 1907, and payable one year after date. On June 3, 1913, the plaintiff filed an amended complaint setting forth a note of same date and amount as before and in like terms, except that it read “ten months after date” instead of one year after date, and" omitted the provision for interest contained in the note set out in the original complaint. A demurrer to the amended complaint having been sustained, the plaintiff, on the thirty-first day of July, 1913, filed his second amended complaint, and therein alleged the execution of a note in the same terms as the note set out in the first amended complaint. The second amended complaint states facts showing that at the time of commencement of this action the plaintiff was unable to see the note or obtain a copy thereof, and was obliged to rely upon his recollection of its terms, plaintiff having seen the note at about the date it was made; alleging also that there was but one ten thousand dollar note made by defendant to Duquesne Brewing Company of date September 25, 1907, and that the note sued on herein, as shown in the second amended complaint, is the same note sued on and by mistake incorrectly. set out in the original complaint.

The second amended complaint further shows that during the year 1909 the Duquesne Brewing Company made and delivered to A. K. Martel a note for two thousand five hundred dollars, which note was afterward sold by Martel to Fidelity Investment Company, a corporation; that .when the two thousand five hundred dollar note became due the Duquesne Brewing Company, in consideration of forbearance of the holder of that note, pledged to Fidelity Investment Company the Glassell note of ten thousand dollars as collateral security for said Martel note; that on June 24, 1909, the

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Fidelity Investment Company commenced an action on the ten thousand dollar note against Glassell and Duquesne Brewing Company, and Glassell, as defendant in that action, filed an answer and the case was set down for trial; that prior to any trial being had therein, and on or about May 10, 1910, “said defendant, Andrew Glassell, settled the said cause of action by then and there paying to said plaintiff in said action about the sum of twenty-five hundred dollars”; that said payment was made as a payment on said ten thousand dollar note and to settle and pay all claim and demand that Fidelity Investment Company had in or to said ten thousand dollar note as security for the payment of said Martel note; that thereupon Fidelity Investment Company, plaintiff in that action, transferred and delivered to Andrew Glassell, defendant therein, both of said notes, and ever since that time he has been in possession and control of the same; that Glassell at and prior to the time he made said settlement knew that said ten thousand dollar note made by him to Duquesne Brewing Company was held as collateral security for the Martel note and for no other purpose; and well knew that the only interest that Fidelity Investment Company had in the ten thousand dollar note was to the extent of two thousand five hundred dollars, with interest on said smaller sum; that the defendant Glassell received said note in trust for the Duquesne Brewing Company and has held the same in trust for the use and benefit of the Duquesne Brewing Company and its assigns ever since that time.