Perrine v. Hotchkiss

By the Court, Johnson, J.

We are all of the opinion that the judgment must be reversed, for errors committed upon the trial, in receiving improper evidence *86 against the defendant’s objections. We think the statement from the bank-books of the Bank of Geneva, was improperly received in evidence. This statement appears to have been received in evidence for the purpose of establishing the truth of the statements therein contained as to the amount of paper which had been discounted at that-bank for the defendant, and the number of notes so discounted and renewed. The books themselves could not have been made evidence to prove these facts, and a statement made up from the books was equally incompetent. The books were not kept by either of the parties, and did not relate to transactions between them. They related solely to transactions between the defendant and the bank, a third party; and we know of no rule of evidence which could render them competent evidence between these parties. The testimony of the witness Parshall, expressing his opinion as to the value of the services rendered by the plaintiff, was also inadmissible as evidence, against the defendant’s objection. It was incompetent upon several grounds. The services, as appears by the plaintiff’s testimony, for which he claimed compensation, were of three different and distinct kinds, viz: 1. Procuring the defendant’s paper to be discounted, and procuring loans for him in that way. 2. Indorsing the defendant’s paper, and thus aiding him with his credit, either by way of sale or loan of credit. 3. Time, travel and expense in going to different banks and places to get the defendant’s paper discounted and renewed. The question propounded to this witness, called for his opinion of the value of all these sevices combined, and he was allowed to answer, against the objection of the defendant’s counsel. The value of these services under the first and second heads could not, we think, be legally proved by the opinion of any witness, however skilled or competent he might be in all matters of banking and finance. The first relates to brokage, and the compensation for that service is fixed by statute. (1 R. S. *87 709, § 1.) By this statute it is provided that, “ no person shall, directly or indirectly, take or receive more than fifty cents for a brokage, soliciting, driving or procuring the loan, on forbearance, of one hundred dollars for one year, and in that proportion for a greater or less sum, nor more than thirty-eight cents for. making or renewing any bond, bill, note or other security given for such loan or forbearance,” &c. It is clear enough that when the statute fixes the compensation, it cannot be enlarged or changed by any testimony. The second head relates to services by way of sale or loan of the credit of one to another. In the case of indorsements of commercial paper, by accomodation indorsers, the law does not presume an agreement between the maker and indorser, that the latter is to be compensated for the favor of his indorsement. If compensation is claimed, the indorser must show that there was a special agreement that he should be compensated for such use of his credit. The law allows a party who becomes surety for another, by way of indorsement or otherwise, to agree upon a certain price for the use of Ms credit. It has been repeatedly held that a person may loan or sell Ms credit to another, at a price agreed upon, the same as any other commodity; and that such contract is not usurious, when it is for that purpose only. This is quite different from brokage. But we are clearly of the opinion that a surety cannot recover for the use of his credit by the principal, unless there is some specific, contract fixing the price to be paid. If there is only a general agreement that he shall be paid something, without fixing any specific sum, we do not see how any sum could be established. It is plain, we think, that opinions of wit-n nesses would not be competent to fix a price, where no price was agreed upon, for the reason that credit cannot be said to have any regular and current market value. There is no standard to judge by in any given case, and opinions would necessarily be mere matters of fancy and conjecture. *88 The credit of one person, as all know, may afford a much firmer and more valuable support than that of another, and be of far greater advantage in every way. Much would depend, in every case, upon the quality, and there is, and can be, no market price for different grades of credit when loaned or sold. It appears from the cross-examination of this witness, that he fixed the compensation named by him, of from $400 to $600 per year, for the credit given by indorsing the defendant’s paper alone. As to the third item, time, travel and expense, the question whether the defendant could recover for that, would depend upon whether it was a service separate from the brokage, and was to be paid for as a separate service. It would not necessarily, or presumably, have any connection with the loan or sale of credit. They are quite different things, both in their nature and character. If this service was independent of the brokage, the defendant may recover for it upon the general promise to pay, whatever he can prove it to be worth, not to.the defendant, in the particular circumstances in which he was placed, but according to the general price and value of such services. This may be proved by the opinions of witnesses who are qualified to judge of their value.

[Fourth Department, General Term, at Rochester, September 5, 1870.

ffor the foregoing reasons, the judgment must be reversed, and a new trial ordered, with costs to abide the event.

Mullin, P. J., and Johnson and Talcott, Justices.]