Place v. . McIlvain

38 N.Y. 96

• Court: New York Court of Appeals
• Decided: January 5, 1868
• Status: Published

Opinions

Grover, J.

The principal question in this case arises upon the exception of the defendants to the refusal of the judge to direct a verdict for the defendants. The undisputed facts, upon which the request was based, were, that after the defendants were duly charged as indorsers upon the note in suit, the maker sent his check upon the Hanover bank for the amount of the note, payable to plaintiffs’ order, post-dated some seven days, inclosed in a letter as follows: “ I herewith inclose you my check on the Hanover bank for $490, for my note now under protest. Please keep the check, and when paid, I will call for the note. I have been disappointed today in getting the money, and of course quite short. If you will accept this, you will confer on me a very great favor, and if you have been put to any expense in consequence of not getting this money at maturity, I will re-imburse you.” That the plaintiffs received the check on the day of its date, and retained it until maturity, and then presented it for payment, which was refused; that, until after this, no communication was made by the plaintiffs to the maker in regard to the check or note, and no notice given to the latter, of acceptance or rejection of the proposition contained in the letter inclosing the check. The verdict of the jury, under the charge given, finds, that there was no express agreement by the plaintiffs to give time to the maker, and no intention on their part to retain the check as their own property until maturity; but there was no evidence to sustain such findings, except as above stated. The letter, fairly construed, contains a request by the maker, to retain the check, and give time for the pay ment of the note until maturity; retaining the check until maturity, by the plaintiffs, and then presenting it for collection, shows that they assented to such request. They were not at liberty, so to retain it, without notice to the maker, without such assent, and, after having done so, it is not competent for them to allege that they retained it for some other purpose, of which the maker had no knowledge, and to which he never assented. The plaintiffs were bound, upon the receipt of the letter and check, to elect either to retain it upon the terms proposed, or to reject such terms, and return the check to the maker. Having retained the check, they must be regarded as assenting to the terms upon which it was sent by the maker. When a creditor takes the note of his debtor, payable at a future day, he thereby suspends his right of action upon the debt, until the maturity of such note. (Putnam v. Lewis, 8 Johns. 382; Myers v. Willey, 5 Hill, 463 ; Fellows v. Prentiss, 3 Denio, 518.) Taking the draft or check of the debtor so payable, is the same in principle, and should be held to produce the like effect. This was so held in Bangs v. Mosher, 23 Barb. 478. Extending the time of payment to the principal debtor by the creditor discharges the surety. ( 3 Denio, supra.) Suspending the right of action by the creditor, has the like effect, although but for a single day. (Same oases, and cases cited.) It follows, that theplaintiffs, having suspended the right to sue the maker upon the note, until the maturity of the check, the indorsers were thereby discharged. The judge, therefore, erred in not directing a verdict in their favor as requested. The order reversing the judgment and granting anew trial must be affirmed, and judgment final for the defendants upon the stipulation.