Lewis v. Lozee

3 Wend. 79

• Court: New York Supreme Court
• Decided: August 15, 1829
• Status: Published

Opinion

By the Court,

Sutherland, J.

The receipt given by Armstrong for the note of Lozee and his sureties, shews that the note was received as collateral security only, and not as payment of the rent; for the receipt contained an express stipulation that Lewis should not re-enter or distrain for the rent for sixty days from the date, that being the period which the note had to run. If the note was received by Lewis, as payment or satisfaction of the rent, why the stipulation that he should not re-enter or distrain again for 60 days ? If the rent was paid by the note, he could not re-enter: his only remedy was upon the note, and his peculiar remedies as landlord were gone. The receipt appears to me to carry, as conclusive evidence upon the face, of it, that the note was received as collateral security only, and not as payment, as though it had been so expressed in terms.

There are cases, undoubtedly, where the giving negotiable paper is equivalent to the payment of money. (2 Esp. R. 571. 8 Johns. R. 206. 11 id. 518, 464. 6 Cowen, 301, 470. 7 id. 668. 1 Wendell, 430.) But none of those cases have any analogy to this. Here it is manifest it was not understood to be a satisfaction of the rent by the parties, but only a postponement of the day of payment, upon receiving additional security. It appeared affirmatively that thé note had not been paid, and was still in the hands of the payee. (2 Johns. C. 438. 3 Johns. R. 71. 5 id. 68. 7 id. 311. 9 id. 310.) The plaintiff, therefore, if entitled to recover at all, should have had nominal damages only ; and the court erred in instructing the jury to find for the plaintiff the difference between the rent actually due and the amount distrained1 for, the lattér being that for which the note was given.

J udgment reversed, and venire de novo to Dutchess common pleas.