Hutchinson v. Moody

The opinion of the Court was drawn up by Shepley J. The presumption of law, that .the indorsement was made on the day of the date of the note, was rebutted by proof, that it remained the property of the payee after it became payable. His acts of ownership would be the best evidence of a continued property in it, until some further evidence of a transfer or of a possession by the plaintiff yas offered. And' the agreements and declarations of the payee respecting it were therefore properly admitted. The note for $269,44, appearing upon inspection to bear date on the 3d of April, 1837, when one of the agreements for delay of payment was made, was properly admitted as tending to prove a valuable consideration for it. That part of the deposition of Le Breton objected to had a tendency to prove, that the principal could have paid the note at maturity, and that delay was injurious to the sureties. Such evidence was not however necessary, for the law presumes an injury from a change of the contract and a prolongation of the risk assumed. The deposition of Mills was properly submitted to the jury to infer, if they thought proper to do, so, that the contract of the 3d of October, 1836, was not made with the assent of the sureties ; for the conversation between one of them and the payee was apparently inconsistent with such a state of facts. One of the points decided in Leavitt v. Savage, 16 Maine R. 72, was, that a collateral agreement with the principal, giving day of payment, would, for the reasons there stated, operate as a discharge of ,the sureties. Exceptions overruled.