Murray v. Gouverneur

2 Johns. Cas. 438

Opinion

Kent, J.

I do not consider the bills which the respondents took in January, 1796, as a payment of the 5000 dollars ; notwithstanding they gave a receipt, as for so much cash. Receipts are never so conclusive but that they may be explained ;(

a) and we have the Consideration of this receipt fully explained to us. The bills were drawn by Robert Murray & Co. on one of the partners in London. This is, in fact, like a person drawing a bill on himself; the law imposes on him all requisite notice.

Jt is a settled rule of law, that a bill shall not be a discharge of a precedent debt, unless it be so expressly agreed between the parties. (1 Salk. 124.) “The law is clear,” says Lord Kenyon, (1 Esp. Cases, 8,) “ that if, in payment of a debt, the creditor is content to take a bill or note, payable at a future day, he cannot legally commence an action on the original debt, until such bill or note becomes payable or default is made ; but if such bill or note is of no value, as if, for example, it be drawn on a person who has no effects of the drawer in hand, (as was the case here,) and who, therefore, refuses it, in such case he may consider it as waste paper.”(b)

It is evident, that Robert Murray did not consider the bills as payment; for, as the appellant states, on the first, payment Robert Murray was to receive a deed, and yet, after the delivery of the bills, and the receipt was given, he did not require a conveyance. This is pretty decisive proof, that Robert Murray himself did not regard the 5000 dollars as an absolute payment.

The appellant, if a bona fide purchaser without notice, (of which there may be some doubt,) took the house and lot, subject to all the equity between the parties, existing prior to the assignment; and, of course, he could not require a specific performance of the contract on other terms than those which Robert Murray could insist upon ; and the latter could not, in equity, demand a conveyance, without tendering the 10,000 dollars, the consideration money for the sale.(c)

As to the sum expended by the appellant for repairs, it may be left for liquidation, in an action for the mesne profits, if the respondents should think proper to sue for *the rents and profits. The action for mesne profits is a liberal and equitable action, and will allow of every kind of equitable defence.(d)

On the whole, I am of opinion, that the decree of the chancellor ought to be affirmed.

The rest of the court being of the same opinion, it was, thereupon, ordered, adjudged and decreed, that the decree of the Chancellor be affirmed.

Judgment of affirmance.

(a) See sufra, vol. 1, p. 146, n. (a) to Ensign v. Webster.

(b) It is well settled as a general principle, that the transfer of a bill or note does not satisfy an existing debt, unless it be paid and accepted in good faith for that purpose. If, however, the bill or note be taken in satisfaction of the debt, or if it be received upon condition that it be collected, and the creditor is guilty of laches in the collection, it is regarded, in the former instance, as a payment, and in the latter, as an appropriation of the note, which is equivalent to a payment in its effect. (Dayton v. Trull, 23 Wend. 345. Copper v. Powell, Anthon’s N. P. 49. Tobey v. Barber, 5 Johnson, 68. Johnson v. Weed, 9 id. 310. Putnam v. Lewis, 8 id. 359. Hoan v. Clute, 15 Johnson, 224. Burdick v. Green, id. 247. Herring v. Sanger, 3 Johnson’s Cas. 71. Woodcock v. Bennett, 1 Cowen, 711. Higgins v. Packard, 2 Hall, 547. Sheehy v. Mandeville, 6 Cranch, 253. Gallagher v. Roberts, 2 Wash. C. C. 191; 1 id. 321; 1 id. 156. Brown v. Jackson, 2 id. 24 ; 1 id. 512. Denniston v. Imbree, 3 id. 396. Parker v. United States, Peters’ C. C. 256. Newell v. Hussey, 6 Shepley, 249. Comstock v. Smith, 2 id. 202. See 4 Mumford, 487. Paine, 285. Henry v. Donnaghy, Addison, 39. M’Ginn v. Holmes, 2 Watts, 121. Abercrombie v. Mosely, 9 Porter, 145. Dougal v. Coles, 5 Day, 511. Anderson v. Henshaw, 2 id. 272. Bill v. Porter, 9 Conn. 23. Coxe v. Hunkinson, Coxe, 85. Chastain v. Johnson, 2 Bai. 574. Kennell v. Hennesy, Peck, 273. M'Guire v. Gadsby, 3 Call, 234. Slocomb v. Holmes, 1 How, (Miss.) 139. Cave v. Hall, 5 Missouri, 59. Pope v. Tunstall, 2 Pike, 209. Watson v. Owens, 1 Richard. 111.) In Maine, however, the presumption is that a negotiable bill given in the state was designed to be an extinguishment of the original demand. This presumption, however, is disputable, and the rule does not apply to notes given in a foreign country. (Descadillas v. Harris, 8 Greenleaf, 298. Varner v. Nobleborough, 2 Greenl. 121. Gilmour v. Bussey, 3 Fairfield, 418. See Wallace v. Agry, 4 Mason, 343.) The same rule exists in Alabama, Massachusetts and Pennsylvania. (Hutchins v. Olcott, 4 Vermont, 555. Plankenhorn v. Cave, 2 Yeates, 370. Wood v. Bodwell, 12 Pickering, 268. Jones v. Kennedy, 11 id. 125. Reed v. Upton, 10 id. 522, Watkins v. Hill, 8 id. 522. Baker v. Briggs, id. 122. Van Cleef v. Therasson, 3 id. 12. Johnson v. Johnson, 11 Massachusetts, 359. Goodenow v. Taylor, 7 id. 36. Mancely v. M’Gee, 6 id. 143. Greenwood v. Curtis, id. 358. Thatcher v. Densmore, 5 id. 299. Emerson v. Prov. Hat Man. Co. 12 id. 237. Butts v. Dean, 2 Metcalf, 76. Ilsley v. Jewett, id. 168. Maynard v. Johnson, 4 Alabama, 116.) The case of Terrey v. Baxter, (13 Vermont,, 452,) seems somewhat to conflict with the rule laid down in Hutchins v. Olcott, (cited supra,) in deciding that a proihissory note of the debtor or of s, third person with the guaranty of the debtor prove unavailable to the creditor without any fault on his part, he may resort to his original demand.

(c) Beaumon v. Thomas, 1 Louis. An. Rep. 284. Moulton v. Reese, Wright, 381. Saltus v. Everett, 20 Wendell, 267. Bradeen v. Brooks, 9 Shepley, 463.

(d) See Till. Adams on Ejectment, ed. 1846, 379, et seq. Roscoe on Actions Relative to Real Property, 705, et seq. Stephens’ N. P. p. 1490, et seq. Arehboid’s N. P. 129, 405, et seq. And see Stats. 1 Geo. IV. ch. 87, § 2, and 2 Rev. Stat. of N. York, 3d ed. 406. See Acts 21st March, 1806, and 13th April, 1807. As to Scotch law, see Erskine, 62, tit. 1, § 25. Stair, b. 9, tit. 11, 6 23.