Mercantile Bank of Norfolk Va. v. Pettigrew

74 N.C. 326

Opinion

Bbade, J.

A holds a promissory note for the payment of money, on B. And B pays off the note to A, but does not take it up; nor does he take a receipt or other acquittance. Can B maintain an action against A, to have the note delivered up and cancelled ?

The fact that no precedent can be found for such an action, is strongly against it; for there must have been innumerable instances of such transactions.

A note, wbicb bas been paid off, is of no value. It is not like a title deed for land, wbicb may be recovered. Nor is it like an unsatisfied bond, or other instrument, which bas been obtained by fraud, and wbicb may be decreed to be delivered up and cancelled. It is simply a worthless piece of paper, wbicb was evidence of a promise wbicb bas been performed. It could be worth nothing to B, if be were to recover it. It is worth nothing to A who keeps it, for if be attempt to recover upon it of B, B can defeat the recovery by the very evidence upon wbicb he would rely in bis action to have it delivered up and cancelled, that is, by proof of payment.

And besides, when B paid off the note, it was gross negligence not to take it up, or take a receipt against it. And his negligence will not be aided by a Court of Equity.

Furthermore, the plaintiff is entitled' to bold the note as against the endorsers, as to whom it is not pretended that they have paid it to the plaintiffs. And. as the plaintiffs have taken judgment against the endorsers, the note is, or ought to. be, ■filed as a paper in the cause. So that, as the defendant could not have recovered in a direct action, bis counter-claim to have the note delivered up to be cancelled, is no reason why the plaintiff should not take a non-suit.

There is no error.

Rer Curiam. Judgment affirmed.