Frost v. Martin

26 N.H. 422

• Court: Superior Court of New Hampshire
• Decided: July 15, 1853
• Status: Published

Opinion

Woods, J.

The plaintiff, in this case, seeks to recover back a part of the price which he paid the defendant for the note of Staples and others, upon the ground that when he bought the note, $200 had in fact been paid towards it by Staples, of which the plaintiff was, at the time of the purchase, ignorant. The case distinctly finds that such a payment had been made by Staples to Shapleigh, one of the payees, entitled at the time to demand and receive such payment. But it is said that soon after this payment had been made and acknowledged, by a written paper from Shapleigh to Staples, these two, for reasons which appear in the case, agreed that that application of the $200 should be annulled, and the sum appropriated to different objects.

Before this payment was made the note stood good for its entire face against Shapleigh, Pray and Morse, either of whom had a right at this time to pay it, and so to discharge ¡the others. The liability of each to pay the note would have been at an end the moment that either of them should pay it; and this liability to pay any part of it was of course ■dissolved pro tanto the moment such part should be paid by ■either. But there is nothing in the relation of joint promis.■sors upon a note, that enables one of them who has, by having paid the note, discharged the liability of the others, to ■make an arrangement with the payee to restore it again.

There seems to be no difficulty in applying these clear .principles to the present case. Staples, who was the principal, made a paymént upon the note to Shapleigh, a payee, ¡having undoubted authority to receive the payment. The act was consummated; nothing could have been added to make it more perfect. Pray and Morse, of course, ceased to be longer liable to the extent of that payment.

Whether Staples and Shapleigh, at any time, whether a long or a short time after the payment, might have altered their arrangements so as to revive the debt against Staples, is not, material as regards the rights of this plaintiff. He •bought and paid for a note of $455 against Staples, Morse and Pray. But as to $200, it turns out that the. two last named parties were not liable at the time of the purchase.

Whether the money belonged to Staples, or in part to the other signers, is not material. Supposing it to have been his, he paid it in" discharge of a duty towards his sureties, and could not, without their consent, reclaim it.

As to the first point, therefore, we hold the ruling of the court below to have been erroneous. No opinion is necessary to be given as to the other questions arising on the case. The verdict should, therefore, be set aside, and

A new trial granted.