Anderson v. Dutton

This is an action of tort on G.L. 6888 as amended by No. 130, Acts of 1925, to recover the amount due on a check drawn by the defendant on the Barton Savings Bank Trust Company, for $150, in favor of plaintiff, which upon its presentation was protested by the bank for want of sufficient funds therein to the credit of the drawer with which to pay the same. Defendant filed an answer to the effect that at the time the check was made and delivered and for some time thereafter he had sufficient funds on deposit in said bank to meet it, and that after the check was protested by the bank, he settled with the plaintiff for said protested check and paid the same by delivering to the latter a note for an equal amount which the plaintiff was owing defendant at the time the check went to protest. A trial had by jury in the Orleans County municipal court, resulting in a verdict and judgment for defendant to recover his costs. Plaintiff excepted to the submission to the jury of the question of payment by the defendant, on the ground that there was no evidence to warrant it. The reporter's transcript of the evidence is referred to so far as any evidence may there appear in support of defendant's claim of payment. On this question the transcript shows as follows: Defendant testified in chief that he learned on July 25, 1926, that the check had gone to protest on July 23d; that at the time he so learned, he tried to settle with the plaintiff; further testifying: "Q. And how did you settle with him at that time? A. I told him I would give him his note if he would give me the check. Q. How much was the note for? A. $150.00. Q. Had you previously demanded payment of the note from Mr. Anderson? A. Yes, sir, on the 21st. Q. Before *Page 466 the check went protest? A. Yes, sir. Q. And what did you say? A. I said he would have to pay it as soon as he could." In cross-examination, plaintiff's attorney showed by defendant that plaintiff sold him two cows, testifying further as follows: "Q. And you gave him the note in payment of the two cows? A. No. Q. Did you pay him for those two cows? A. No. Q. He sold you two cows and you didn't pay for them? A. Yes, sir. Q. You gave him his note? A. Yes, sir. * * * * Q. Now which is true; that you gave him that note in payment for the check, or that you gave that note in payment for the cows, and agreed to see that the check was made good? Which of those two things is true? Can't you tell? A. He told me that it was up to me to make the check good." In rebuttal, plaintiff testified: "Q. Mr. Anderson, I show you a paper marked `Plaintiff 2' and ask you if those are the figures made at the time that Mr. Dutton delivered you the note? A. Yes, sir. Q. And you settled for the note? A. Yes, sir. * * * Q. Did you exchange or agree to exchange at that time the check you had taken for the note you had given? A. No. Q. You did on that day pay and settle the note? A. Yes, sir. Q. And the check still remained unpaid? A. Yes." Plaintiff improved his wife as a witness in rebuttal. She testified in chief to being present when her husband and the defendant "figured up things." She was then asked, "Can you tell whether that note was figured in settlement and payment of the cows?" To this question she answered, "Yes, sir." Neither of the parties asked the witness to tell, nor did she at any time tell whether in fact the note was so figured.