The opinion of the Court was drawn up by
Tenney J.
On August 22, 1840, the plaintiffs, residing in Boston, held the note of the defendants, indorsed by one Joshua Lane, for the sum of $202, payable at the Suffolk Bank in Boston, which had long been overdue; on that day a note was received by one of the plaintiffs, in the following terms, viz : — “ Bangor, Me. Aug. 22, 1840. Thirty days after date, value received I promise to pay to the order of D. Moss-man & Co. 53, and dollars,” signed by one of the de[479]*479fendants and indorsed by David Mossman & Co. and at the same time it was agreed in writing on the part of the plaintiffs, that if the new note should be paid at maturity, the signer thereof should be discharged from his liability on the other note. No evidence was offered of any ageement, that payment of the latter note should be made at a place different from that fixed by law, arising from its terms; though Moss-man testified, that ho considered such a note payable at the place of its date. It does not appear, that the defendants made any attempt to pay the new note, when it became payable, or were in readiness so to do, if called upon ; one of the firm, however, who indorsed it, testified, that he was not notified of .its dishonor, but if he had been so notified, he should have paid it. Evidence was introduced, of a tender of specie, made by the maker of the last note, at Bangor, on January 22, 184-5, to take it up, declared by him to be a sum, which was equal to tire principal and interest, to one of the plaintiffs, who refused to receive or to count it, saying he had no such note. The present suit is brought upon the note first given by the defendants, and they contend that the suit cannot be maintained.
The last note, though for a sum less than that, for which the defendants were previously holden, was against another party ; and the contract modifying the time of payment and the amount to be paid, upon the performance of a condition, was upon sufficient consideration, and binding according to its import. The agreement of the plaintiff, that if the defendants should pay a sum of money less than that then due, in thirty days, he should be discharged from further liability, and nothing further was contained in the contract, it could not be enforced against the plaintiffs, there being no consideration therefor. It was necessary, therefore, that there should be some promise or contract from the other party, to render the plaintiff’s conditional promise binding. The purpose of the maker of the new note was to obtain the other at a discount, and his own conditional promise alone, created no legal obligation in the plaintiffs, inasmuch as they then had the absolute [480]*480promise of him and others for a greater sum ; but the obtaining a party not before liable would give validity to the plaintiffs’ contract, and the form of a note, it seems, was adopted to carry into effect, in a legal manner, the intention of those interested in the arrangement.
It cannot be, and is not contended, that the agreement entered into on Aug. 22, 1840, of itself discharged the defendants from their previous indebtedness. The former note was outstanding and the maker of the new note was still liable on his original promise, the obligation of which would cease only by the payment of the new note, or by some act of the plaintiffs, which would substitute it for their former claim. To make out the defence, it must be shown, that the condition in the agreement of the 22d Aug. 1840, was performed, or that its performance was prevented by the wrong of the plaintiffs, or that they have adopted the new note in discharge of the old note. It is not contended that John Lane paid his note on the 22d of Aug. 1840, but it is insisted, that the facts, that it was' carried out of the State, and that one of the firm, who indorsed it would have paid it at maturity, if he had been notified of its dishonor by the maker, were equivalent to a tender on the day of payment.
“ All debts between the original parties are payable everywhere unless some special provision to the contrary be made; and therefore the rule is, that debts have no situs but accompany the creditor everywhere.” “ A negotiable note made payable generally, without any specification of place,, is a contract to pay at any place, where it is negotiated, so as to be deemed a contract of that place and governed by its laws.” It creates a debt payable any where by the very nature of the contract, and it is a- promise to whomsoever shall be the holder. Story’s Con. Laws, § 317; Braynard v. Marshall, 8 Pick. 194.
The firm whose name is upon the note of 22d of August, 1840, cannot be regarded as original promisors upon it, but are indorsers and only conditionally liable. If the plaintiffs had wished to avail themselves of the new contract, they could, have done so against all the parties, whether maker or [481]*481indorsers, or against the one or the other. The indorsers were discharged from all liability by the omission to make a demand upon the maker, and give notice of the dishonor to them; they have no cause of complaint for this omission as they have suffered and can suffer nothing thereby. The liability of the maker was not affected by the discharge of the indorsers to his prejudice. The plaintiffs therefore were under no obligation to take the steps to render the indorsers’ liability absolute. If the evidence authorized the conclusion, that the indorsers were in readiness to pay the note at maturity, had they received notice of its non-payment, there is nothing showing that this was by the maker’s procurement, and could not avail him in his defence, even if the note was improperly carried out of the State. But the case finds, that the residence of the plaintiffs was in Boston, where the first note was payable, and it was there that it must have been expected to bo paid. It cannot be well doubted from the terms used in the new note and agreement, and the omission therein of any specific place of payment, that the new note would be carried by the one who received it to Boston, whenever he should go there, and that it was so understood by both parties; indeed the only proof that it was in fact carried out of the State is an inference from the evidence, that the plaintiffs resided in Boston, for there is no direct evidence upon the point. If tho plaintiffs had taken the note of the 22d August, 1840, in discharge of the former, instead of annexing to its receipt a condition, and a suit had been brought thereon, after its maturity, against the maker, no fact introduced in evidence here could have operated as a defence to such suit; the note being in Boston at its maturity, and the indorsers, whom tho plaintiffs took no measures to hold liable, being ready and willing to pay the note had they been notified, that the maker had failed to make payment on demand, could not have prevented a recovery. Consequently the same facts, do not dispense with the necessity of a literal fulfilment of the condition, or a legal offer to do so, at the time specified in the agreement of August 22d, 1840.
[482]*482It is insisted, that the failure of the plaintiffs to notify the defendants, that they should rely upon the old note, raises a presumption, that he waived the time of payment of the new note; or that he elected to abide by the new arrangement. The agreement of Aug. 22, 1840, was executory. Either party could take the steps necessary to carry it into effect.
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The opinion of the Court was drawn up by
Tenney J.
On August 22, 1840, the plaintiffs, residing in Boston, held the note of the defendants, indorsed by one Joshua Lane, for the sum of $202, payable at the Suffolk Bank in Boston, which had long been overdue; on that day a note was received by one of the plaintiffs, in the following terms, viz : — “ Bangor, Me. Aug. 22, 1840. Thirty days after date, value received I promise to pay to the order of D. Moss-man & Co. 53, and dollars,” signed by one of the de[479]*479fendants and indorsed by David Mossman & Co. and at the same time it was agreed in writing on the part of the plaintiffs, that if the new note should be paid at maturity, the signer thereof should be discharged from his liability on the other note. No evidence was offered of any ageement, that payment of the latter note should be made at a place different from that fixed by law, arising from its terms; though Moss-man testified, that ho considered such a note payable at the place of its date. It does not appear, that the defendants made any attempt to pay the new note, when it became payable, or were in readiness so to do, if called upon ; one of the firm, however, who indorsed it, testified, that he was not notified of .its dishonor, but if he had been so notified, he should have paid it. Evidence was introduced, of a tender of specie, made by the maker of the last note, at Bangor, on January 22, 184-5, to take it up, declared by him to be a sum, which was equal to tire principal and interest, to one of the plaintiffs, who refused to receive or to count it, saying he had no such note. The present suit is brought upon the note first given by the defendants, and they contend that the suit cannot be maintained.
The last note, though for a sum less than that, for which the defendants were previously holden, was against another party ; and the contract modifying the time of payment and the amount to be paid, upon the performance of a condition, was upon sufficient consideration, and binding according to its import. The agreement of the plaintiff, that if the defendants should pay a sum of money less than that then due, in thirty days, he should be discharged from further liability, and nothing further was contained in the contract, it could not be enforced against the plaintiffs, there being no consideration therefor. It was necessary, therefore, that there should be some promise or contract from the other party, to render the plaintiff’s conditional promise binding. The purpose of the maker of the new note was to obtain the other at a discount, and his own conditional promise alone, created no legal obligation in the plaintiffs, inasmuch as they then had the absolute [480]*480promise of him and others for a greater sum ; but the obtaining a party not before liable would give validity to the plaintiffs’ contract, and the form of a note, it seems, was adopted to carry into effect, in a legal manner, the intention of those interested in the arrangement.
It cannot be, and is not contended, that the agreement entered into on Aug. 22, 1840, of itself discharged the defendants from their previous indebtedness. The former note was outstanding and the maker of the new note was still liable on his original promise, the obligation of which would cease only by the payment of the new note, or by some act of the plaintiffs, which would substitute it for their former claim. To make out the defence, it must be shown, that the condition in the agreement of the 22d Aug. 1840, was performed, or that its performance was prevented by the wrong of the plaintiffs, or that they have adopted the new note in discharge of the old note. It is not contended that John Lane paid his note on the 22d of Aug. 1840, but it is insisted, that the facts, that it was' carried out of the State, and that one of the firm, who indorsed it would have paid it at maturity, if he had been notified of its dishonor by the maker, were equivalent to a tender on the day of payment.
“ All debts between the original parties are payable everywhere unless some special provision to the contrary be made; and therefore the rule is, that debts have no situs but accompany the creditor everywhere.” “ A negotiable note made payable generally, without any specification of place,, is a contract to pay at any place, where it is negotiated, so as to be deemed a contract of that place and governed by its laws.” It creates a debt payable any where by the very nature of the contract, and it is a- promise to whomsoever shall be the holder. Story’s Con. Laws, § 317; Braynard v. Marshall, 8 Pick. 194.
The firm whose name is upon the note of 22d of August, 1840, cannot be regarded as original promisors upon it, but are indorsers and only conditionally liable. If the plaintiffs had wished to avail themselves of the new contract, they could, have done so against all the parties, whether maker or [481]*481indorsers, or against the one or the other. The indorsers were discharged from all liability by the omission to make a demand upon the maker, and give notice of the dishonor to them; they have no cause of complaint for this omission as they have suffered and can suffer nothing thereby. The liability of the maker was not affected by the discharge of the indorsers to his prejudice. The plaintiffs therefore were under no obligation to take the steps to render the indorsers’ liability absolute. If the evidence authorized the conclusion, that the indorsers were in readiness to pay the note at maturity, had they received notice of its non-payment, there is nothing showing that this was by the maker’s procurement, and could not avail him in his defence, even if the note was improperly carried out of the State. But the case finds, that the residence of the plaintiffs was in Boston, where the first note was payable, and it was there that it must have been expected to bo paid. It cannot be well doubted from the terms used in the new note and agreement, and the omission therein of any specific place of payment, that the new note would be carried by the one who received it to Boston, whenever he should go there, and that it was so understood by both parties; indeed the only proof that it was in fact carried out of the State is an inference from the evidence, that the plaintiffs resided in Boston, for there is no direct evidence upon the point. If tho plaintiffs had taken the note of the 22d August, 1840, in discharge of the former, instead of annexing to its receipt a condition, and a suit had been brought thereon, after its maturity, against the maker, no fact introduced in evidence here could have operated as a defence to such suit; the note being in Boston at its maturity, and the indorsers, whom tho plaintiffs took no measures to hold liable, being ready and willing to pay the note had they been notified, that the maker had failed to make payment on demand, could not have prevented a recovery. Consequently the same facts, do not dispense with the necessity of a literal fulfilment of the condition, or a legal offer to do so, at the time specified in the agreement of August 22d, 1840.
[482]*482It is insisted, that the failure of the plaintiffs to notify the defendants, that they should rely upon the old note, raises a presumption, that he waived the time of payment of the new note; or that he elected to abide by the new arrangement. The agreement of Aug. 22, 1840, was executory. Either party could take the steps necessary to carry it into effect. If nothing was'done by either to make it available, it ceased to be operative, and both would be restored to the condition in which they were previously. The maker of the note could have made payment at the time mentioned, or made a tender of the amount, and kept it good, and his former liability would be discharged. The plaintiffs, could have substituted the new for the old note, if they had preferred to have done so. The defendants’ liability on the old note could be discharged at their option only by the payment of the new note, at maturity, or the entire payment of the other before the trial of the action brought thereon. The original liability was to cease, not upon the failure of the plaintiffs to give notice, that they should rely on the first note, but solely upon the fulfilment of the condition in the new contract. And unless this condition was literally performed, all right to enforce payment of the old note was restored. It was still at the election of the plaintiffs to rely upon the new note, notwithstanding the maker thereof could not compel them to do so. There is no evidence in the case tending to show, that they had made the election to make absolutely the substitution, but the omission to secure the liability of the indorsers, is some evidence of a contrary intention.
If the plaintiffs had actually transferred the note last received, it might have been an adoption thereof, and a discharge of the maker’s former indebtedness; but there is no evidence of such transfer; the only proof relied upon, on this point, is the refusal of one of the plaintiffs to receive the money tendered in January, 1845, with the declaration that he had no such note; this declaration might have been evidence of various intentions of the one who made it, but could not have [483]*483been sufficient to present the question to the jury, whether the note referred to, had been adopted and sold to another.
It is contended that negotiable security, having been taken by the plaintiffs, which was to be satisfaction of the debt, if paid, imposed upon the plaintiffs the duty of taking steps to hold the indorsers, before they could resort to an action upon the original claim ; and that this was necessary also to prevent circuity of action. If the plaintiffs had received as collateral security, a note which was valuable to the other party, it would have been incumbent on them, to take all the measures necessary to preyent a discharge of the parties, who could be liable to the one, from whom they received it. But this is not required, when the defendants could in no manner be prejudiced by the omission. We have seen that a demand upon the maker, and notice to the indorsers of the note of Aug. 22, 1840, could not have benefited the maker in any (went, and the law requires no useless ceremony. Neither was it necessary for the plaintiffs to return the new note, before the action upon the former was commenced ; its retention by them gave them no advantage, nor was it injurious to the maker of it.. It was filed in Court, after a tender to him, which prevents any exposure to risk, that he may be called upon by a stranger to this suit, for payment. Thurston v. Blanchard, 22 Pick. 18; Ayers v. Hewett, 19 Maine R. 281.
No evidence was adduced, showing any neglect of duty in the plaintiffs, or any act of theirs injurious to the defendants, which could create a liability ; and there can be no circuity of action, when one party only is exposed to a suit.
Default to stand.