Higby v. New York & Harlem Railroad

7 Abb. Pr. 259, 16 Bosw. 497

Opinion

By the Court.

Footnotes

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*—Pierrepont, J.

—Stewart & Baylies having done their work, the amount claimed in Estimate Mo. 10 was d,ue. It has. not been paid in money, nor has it been released by any formal instrument. The defendants have received the consideration upon which this action is founded, and for it they have paid nothing. The fact that Schuyler charged the Company with this note makes no difference in the present case; he was their debtor to a large amount at the time, and they parted with no new consideration in consequence of such charge.

To. make the receipt of Schuyler’s note operate as payment pro Umbo, it was necessaryfor the defendants to show an agreement to take it as actual payment.

Merely taking it and giving a receipt in full is not alone, sufficient to. establish such agreement. (Toby a. Barber, 5 J. R., 70; Johnson a. Weed, 9 Ib., 310; Noel a. Murray, 3 Kern., 168.) The facts, therefore, are correctly found by the referee, and he has drawn therefrom a just conclusion of law.

The receipt given did not preclude an inquiry into the agreement actually made, in respect to the terms on which the note was taken, and it follows that what Vandervent said at the time on that point was competent evidence. (Johnson a. Weed, supra.) The terms of the agreement, if one was made, are to be determined upon a just consideration of what the parties to the transaction said at that time. There was no error in the admission of the evidence.

Judgment must be affirmed, with costs.

Present, Bosworth, O. J., Hoffman and Pierrefons, JJ.