Gilmore v. Bussey

Weston C. J. —■ The jury have found that the plaintiff has paid money to the use of the defendant. It must have been upon the ground that the labor of Morrill, was performed in the defendant’s service, and on his account. There is evidence to sustain this finding; although it is not to be found in the defendant’s letter, addressed to the plaintiff. Lowder, Jr. the general agent of the defendant at the time, authorized the plaintiff to hire Morrill; and unless it was to be on the defendant’s account, there was no necessity for such authority. If the plaintiff was author 421 ized to hire, he had by implication authority to pay for the services rendered. When did he pay ? A negotiable note will discharge a prior debt on simple contract, unless it is otherwise agreed. But it is very evident that neither Gilmore nor Morrill considered Bussey discharged ; for it was taken with a view that it should be allowed and paid by the latter. It was intended to be made use of as evidence to show the value of the services performed by Morrill. Lowder had notice that the note was given for this purpose, and was frequently requested to turn it on account of what was due from Morrill to Bussey for land. Morrill testified that he did not ascertain that Lowder W'ould not allow the offset, as he expected, until 1827. Up to that period he had regarded it as evidence of his claim against Bussey. He • then turned upon his immediate employer, the plaintiff, the statute of limitations not having at that time attached, and ultimately enforced payment. Upon these facts, the mere giving of the note by the plaintiff was not such a payment as would have discharged the defendant from the claims of Morrill. It was not so received or intended. If the plaintiff had not paid or had been unable to pay, Morrill, notwithstanding the note, could have recovered for his labor of Bussey, proving that it was performed on his account, and that the note was originally received, not as payment, but as a voucher against him. It was not then until the plaintiff had actually paid the money, which he was justified in doing by his authority to hire, that any right of action accrued to him against the defendant. Within six years from that time, this action was brought. The case does not therefore require a new promise, which there has been an attempt to prove, the sufficiency of which it is unnecessary to determine, or the authority of the agent, by whom it is alleged to have been made. Exceptions overruled.