Moore v. Fitz

59 N.H. 572

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1880
• Status: Published

Opinion

Stanley, J.

The time of payment, for the goods sold, was not fixed. The price was consequently due on demand, and bringing the suit was a sufficient demand; but the defendants claim that the plaintiffs, by taking the two notes, equal in amount to the bill, neither of which was due and payable when this suit was commenced, extended the time of payment, and this action was, for this reason, premature. A note is not payment of a preexisting debt, unless specially agreed to be received as such. Wright v. First Crockery Ware Co., 1 N. H. 281; Jaffrey v. Cornish, 10 N. H. 505; Johnson v. Cleaves, 15 N. H. 332; Clark v. Draper, 19 N. H. 423; Randlet v. Herren, 20 N. H. 103; Whitney v. Goin, 20 N. H. 354; Smith v. Smith, 27 N. H. 244; Ladd v. Wiggin, 35 N. H. 421, 426. Whether a note was agreed to be received in payment is a question of fact. Wilson v. Hanson, 20 N. H. 375; Foster v. Hill, 36 N. H. 526. So is the question, whether it was agreed to extend the time of payment for the goods. The mere reception of the notes, assuming them to have been given for the goods, as it was not a payment for them, did not have that effect. It was evidence to be considered, with the other evidence, on the question whether or not there was an agreement for an extension, but it was not conclusive, and the verdict establishes the fact that there was no such agreement. The offer to return the notes to be cancelled was seasonably made, and the plaintiff, on filing them with the clerk, is entitled to

Judgment on the verdict.

Foster, J., did not sit: the others concurred.