Wright v. First Crockery Ware Co.

1 N.H. 281

• Court: Superior Court of New Hampshire
• Decided: October 15, 1818
• Status: Published

Opinion

The opinion of the court was delivered by

Woodbury, J.

It seems to be well settled that if a creditor agrees to accept the promissory note of his debtor, or of a third person, in satisfaction of a simple contract debt, the debt is extinguished

(1.) But such an agreement is not binding, if the creditor is induced to enter into it by the misrepresentations of the debtor;(2) nor if the note received turn out to be forged ;(3) or of no value, unless the creditor specially agreed to take the risk;(4) nor if it be void for want of a stamp(5.) Nor will the agreement be binding when the note turns out to be of no value, although (lie creditor took the risk, if the debtor knew it to be of no value and the creditor did not(6).

In some cases the note of a third person, received by a creditor, becomes by his negligence a satisfaction of the debt, without any special agreement; as. when he neglects to use due diligence to obtain it of the maker, and the maker fails(7). The note of the debtor will also become a satis-faCfqon without a special agreement, if the creditor transfers it to a third person(8). And if the creditor takes the note of the agent of the debtor, and gives a receipt as for money due from the principal, in consequence of which the debtor deals differently vrith the agent on the faith of the receipt from what he would otherwise have done, the debt is discharged(9). If a person who supplies stores to a ship of which there are several owners, takes in payment the bill of the ship’s husband, who is part owner, and settles with him alone, he thereby discharges the other owners(10). So if two partners give a joint bill of exchange for a partnership debt, and the holder, after the partnership is dissolved, takes the separate bill of one, the other is discharged(11). And, if a debtor deposit money for his creditor with a third person) an(l ^ie creditor assents thereto, and gives the depository a new credit of the footing of such deposit, the original debtor is discharged(12).

-w p v\ ~i _ _ If a person sells goods and pays money, and at the same time receives therefor the note of a third person payable to himself, or any note or bill not having the name of the person with whom he deals, upon it, it will be presumed to be a sale*of the note, and to be in satisfaction, until the contrary appears(13). The rule is, however, different when such note is received for a precedent debt.

But if the creditor receive the note or bill of his debtor, or of a third person endorsed by the debtor, either for a precedent debt, or a debt arising at the time, it is not presumed it has been received in satisfaction (14).

Thus, it is apprehended, stands the common law on this subject.

The supreme court of Massachusetts have, however, decided that a negotiable note is always to be presumed to have been received in satisfaction, until the contrary appears(15). This rule is believed to be peculiar to Massachusetts, and renders some of their decisions irreconcilable with the decisions in other states and in England. The rale, however, seems not to be inconvenient in itself, although it may well be doubted whether it possesses any advantage over the rule laid down in 3 Cranch 311. Perhaps the only objection to it is, that it is an unnecessary departure from the common law. And if an uniformity of decision in the courts of the several states, upon common law questions, is of any importance, this objection is certainly entitled to some consideration. But whether this rale has ever been adopted in this state, or whether it is expedient now to adopt it, are questions which it is unnecessary to settle in this case, as we are clearly of opinion that this cause comes within the principles laid down in Wyatt vs. The Marquis of Hertford, in 3 East 147.

The plaintiff accepted the note of Dakin for the amount of this demand, by which the defendants were induced to leave in the hands of Dakin sufficient to pay the note. Da-kin has become insolvent; and if the plaintiff can prevail in this action the defendants will in effect be compelled, not on account .of any fault or neglect on their part, but by the act of the plaintiff, to pay the debt twice. This would be most manifestly unjust, and. there must be

Judgment on the verdict.

) 1 Salk. 124, Clark vs. Mundell.-2 Shower 303, Vernon vs. Boverie.-5. D. & E. 510, Kearslake vs. Morgan.-6 Cranch 253, Sheehy vs. Mandeville.-7 Mass. R. 285, Wiseman & al. vs. Lyman.-11 Johnson 409, Whitbeck vs. Van. Ness. Andrews 187, 228, Smith vs. Wilson.

6 Johnson 110, Wilson vs. Force.

2 Johnson 455, Murkle vs. Hatfield.

6 D. & E. 52, Puckford vs. Maxwell.-1 Espin. Cases 5. Stedman vs. Gooch.-7 D. & E. 64, Owenson vs. Morse.

) 1 Espin. Cases 245, Wilson vs. Kennedy.—1 East 58, in notes.

Chitty on Bills 119.

2 Wilson 353, Chamberlyn vs. Delarive.

3 Cranch 311, Harris vs. Johnson.-1 Johnson 33, Holmes vs. D’Camp.-1 Cranch 181. Clark vs. Young.

3 East 147, Wyatt vs. The Marquis of Hertford.

Espin. Cases, 122, Reed vs. White & al.-7 Johnson 311, Schemerhorn vs. Loines & al.

4 Espin. Cases 91, Evans vs. Drummond.

1 Gallison 417, Swift vs. Hathaway & al.-3 D. & E. 180.

15 East 11.-11 Johnson 409, Whitberk vs. Van Ness.-1 Lord Raymond 442.-12 Mod. 241. 408, 203, 517.-3 Johnson’s Cases 72.-5 Johnson 68.-1 Salkeld 124.-6 Mod. 36.

Chitty on Bills 109.-2 John. 33, Holmes vs, D’Camp.-8 D. & E. 451, Tapley vs. Martins.

5 Mass. R. 302, Thatcher & al. vs. Dinsmore.-10. Mass. R. 47, Chapman vs. Durant & al.-6 Mass. R. 143, Mancely vs. M'Gee & al.