Gilman Bros. v. Stevens

Clabk, J. The notes were made and payable in this state, and in determining their validity and effect they must be regarded as New Hampshire contracts. Dow v. Rowell, 12 N. H. 49; Bank v. Colby, 12 N. H. 520; Dyer v. Hunt, 5 N. H. 401; Thayer v. Elliott, 16 N. H. 102; Little v. Riley, 43 N. H. 109; Chase v. Dow, 47 N. H. 405. The contract of the maker with the payees and with any indorsee of the notes was to be performed in this state, and is governed by the law of New Hampshire. Sto. Conf. Laws, s. 332; Woodruff v. Hill, 116 Mass. 310. In this state a note is not payment of a preexisting debt unless specially agreed to be received, as payment. Moore v. Fitz, 59 N. H. 572. The defendant, being *343 unable to pay when called, upon by'the plaintiffs’ agent, offered his notes, and delivered them to the agent. That the agent had no authority to accept them does not alter the case. It does not appear whether he assumed to accept them, or whether he informed the defendant that he was not authorized to receive them; and whether he did or not is immaterial. The agent’s lack of authority did not change the nature and effect of the contract between the maker and the payee of the notes. Under the law of New Hampshire, the notes, executed and payable in New Hampshire, did not operate as payment of the indebtedness for which they were given, and no additional force or effect was acquired by the acceptance in Massachusetts. In the absence of any agreement of the parties, the acceptance was an acceptance of the notes as New Hampshire notes, — contracts to be performed in New Hampshire and governed by the law of New Hampshire ; and by the law of New Hampshire the notes were not a payment of the plaintiffs’ account. The defendant cannot set up the defence that the notes were payment of the plaintiffs’ claim; and subsequent attaching creditors can make no defence which the defendant cannot make. Judgment for the plaintiffs. Carpenter, J., did not sit: the others concurred.