Mooring v. Mobile Marine Dock & Mutual Insurance

27 Ala. 254

• Court: Supreme Court of Alabama
• Decided: June 15, 1855
• Status: Published

Opinion

RICE, J.

The negotiable note of a debtor is not payment of a pre-existing debt, nor of a debt created at the time it is given, unless there is an agreement to receive it as payment. In the absence of any such agreement, if such note is not duly paid, and the creditor is ready to return it, he may enforce by action the original debt or consideration. In every such action, when the creditor at the trial produces such note, and offers to surrender it, the true question is, whether there was any agreement whatever to accept the note as a payment of the debt due to the plaintiff. — Abercrombie v. Moseley, 9 Por. R. 145 ; Scott v. Myatt, 24 Ala. 489 ; Johnson v. Cleaves, 15 N. H. 335; The Patapsco Ins. Co. v. Smith, 6 Harris & Johns. R. 166 ; Elwood v. Deifendorf, 5 Barb. Sup. Ct. R. 398 ; 7 Hill's R. 130 ; 9 Missouri R. 59 ; 3 Gill’s R. 350 ; 2 Hill’s (S. C.) R. 528 ; 2 Bailey, 574 ; 2 Rich. R. 244; 8 Conn. R. 472 ; 6 T. R. 52; 7 ib. 64 ; 8 ib. 451 ; 9 B. & C. 449 ; Burden v. Halton, 4 Bing. 454 ; Rolt v. Watson, 4 ib. 273 ; Story on Prom. Notes, § 114; 404.

Although such note is not per se a payment, nor received as payment, yet it may operate as a suspension of all right of action in the creditor until after it has become due and dishonored, and will amount to an absolute satisfaction, or ex-tinguishment, of the original debt or consideration, under certain circumstances: thus, if it has been transferred by the creditor, and is outstanding in the hands of a third person. Story on Prom. Notes, § 405 ; Black v. Zacharie, 3 How. (U. S.) R. 483. But independent of the existence of any such agreement, or of any such circumstances, the taking of such note does “ not raise the presumption of payment.”

The charge of the court must be construed in connection with the evidence. The charge in the present case, thus construed, is not ill conflict with the law as hereinabove pronounced. The clear and undisputed facts are, that the defendants are the owners of the boat insured, — that the note for the premium was taken “ for the purpose of closing the account, on the books of the company” ; that before this suit was commenced, the note was protested for non-payment, and that on the trial, it was produced by the plaintiff and offered to the defendants. On these facts, there was neither error nor injury in that part of the charge which declared that “ the taking of the note did not raise tlie presumption of payment.” 6 Harris & Johns. R. 166 ; 15 New Hamp. R. 335, supra.

Judgment affirmed.