Whitton v. Mayo

114 Mass. 179

Opinion

Colt, J.

The plaintiff contends that there was evidence which would justify the jury in finding as a fact that the agreement by which the original notes were given up and the new one for $550 was substituted, was rescinded by mutual assent. This would make the new note a worthless piece of paper without consideration, which it was not necessary to return or offer to return before bringing suit. It was sufficient to offer to return it at the trial, as proof that it had not been negotiated.

The plaintiff’s position is well taken. The defendant returned the original notes in a letter declaring that the new note was without consideration, that it would not be paid, and warning the plaintiff not to negotiate it. This was a denial of the agreement alleged and a restoration of the notes which were the only consideration for the new note. By accepting the notes returned and commencing suits on them, the plaintiff manifested his acquiescence in the defendant’s claim, and the facts would warrant a verdict for the plaintiff. Thurston v. Blanchard, 22 Pick. 18. Bridge v. Batchelder, 9 Allen, 394. Manning v. Albee, 11 Allen, 520.

Verdict set aside and new trial ordered-.