Corner v. Pratt

138 Mass. 446, 1885 Mass. LEXIS 218

Opinion

By the Court.

There was clearly sufficient evidence to justify the jury in finding a waiver by the defendant Moore of demand and notice.

It appeared at the trial, that, after the note in suit matured, the plaintiffs agreed that they would accept in payment of it new notes for two thirds of its amount, and cash for the other third. Moore sent the notes to the plaintiffs, but did not send the money, and the plaintiffs replied, refusing to accept the notes without the money.

If this had been all the evidence, the jury would not have been justified in finding that the note in suit was paid. It also appeared that the plaintiffs retained the new; notes until the trial, when they tendered them to the defendants. The fact that they retained them was not conclusive evidence that they accepted them in part payment of the note in suit; it was properly left to the jury, with the other evidence in the case, to be considered by them upon this question.

If the jury were satisfied that such notes were not received in part payment, it was sufficient if the plaintiffs returned them at the trial. Whitton v. Mayo, 114 Mass. 179.

Exceptions overruled.