Rockingham Bank v. Claggett

29 N.H. 292

• Court: Superior Court of New Hampshire
• Decided: December 15, 1854
• Status: Published

Opinion

Eastman, J.

There was no motion for a nonsuit made at the trial, nor does the case find any motion to set aside the verdict as against evidence. There was no transfer of these questions, and they are not therefore before us.

We see no reason to revise the decision in regard to the interest of Pickering. He distinctly disavowed all interest in the suit, and the papers used upon the trial do not show any.

The principal question of the case relates to the payment of the note, and the maintaining of the action in the name of the bank. And this question, we think, was settled by the jury, under the instructions of the court. The court, in substance, instructed the jury that if the payment made by Norton was in discharge of the debt, the note was paid; otherwise, if the payment was made by him not in discharge of the note, but'to purchase it. Under these instructions, the jury must have found that the note was not paid, and the whole matter would thus seem to have been passed upon and determined by them.

The assignment by Claggett to the Nortons could not operate as a payment. It commenced by reciting that whereas the Nortons have paid or secured to be paid the note to the bank, and it was expressly conditioned to be void if Claggett should pay the debt. It was collateral security merely; not payment. If it had been otherwise, or intended as payment, the note would undoubtedly have been given up to Claggett. But the instrument shows for itself that it was not payment, and that the note was not merged in it, as contended.

The assignment to Pickering by the Nortons was only what the instrument itself provided for. It was made to the Nortons, their executors, administrators and assigns; and Pickering, by the assignment to him, took the position and interest of the Nortons. Claggett could have paid the debt at any time to Pickering or Smith, for whom Pickering acted, as well as to the Nortons, and the assignment would thereby have become void. The debt was not discharged by the transfer to Pickering, any more than by the assignment to the Nortons.

The instructions of the court to the jury were clearly right; and the jury having found that the note was not paid, but purchased by Norton, the action can be maintained in the name of the bank, giving them an indemnity against costs. This question has been so fully and recently examined and passed upon by this court, that we do not deem it necessary to discuss it more fully at this time. Edgerly v. Emerson, 3 Foster’s Rep. 555; Cross v. Rowe, 2 Foster’s Rep. 77; Low v. Blodgett, 1 Foster’s Rep. 121; Elliott v. Abbott, 12 N. H. Rep. 549.

There is no doubt of the correctness of the defendant’s position, that • a note once paid ceases to be negotiable. Such is the doctrine of the cases above cited, and such was the effect of the instructions given to the jury upon the trial of this case.

No exception was taken to the evidence as incompetent to show that the note was not paid. In the case of Blake v. Sewell, 3 Mass. Rep. 556, cited by the defendant, the. payment was made by Pomroy, who was the real debtor in the case. The note was given by Wilson, on a consideration received by Wilson and Pomroy, and Wilson after-wards paid to Pomroy his half of the note, so that Pomroy became the sole debtor. A careful examination of the case will show that it is not an authority for the defendant in this suit.

We are all of opinion that there must be,

Judgment on the verdict.