Crosby v. Redman

Appleton, C. J. On March 24, 1876, the plaintiff gave a permit to Joseph Penny, 2nd, and D. W. Davis “ to cut and remove hemlock bark and logs, and spruce timber suitable for logs,” from his land, reserving and retaining “full and complete ownership and control of all lumber which shall be cut and removed, . . wherever and however it may bo situated, until all matters and things appertaining to or connected with this license shall be settled and adjusted, and the sum or sums due, or to become due, for the stumpage shall be fully paid, and any paper which may be given for it paid,” etc. The stumpage not being paid according to the tenor of the permit, a note was given for the amount due. At the same time the plaintiff gave the following receipt: “ Bangor, June 1,1877. Messrs. Penny & Davis to W. C. Crosby, Dr. “ Stumpage of 921 spruce logs, 85,115 ft., cut by A. K. Ilellier, on land in Clit'ton, under permit to you, $2.75 per M., $234.07 “ Stumpage 27 pine logs, 3,400 ft., cut under permit to A. K. Ilellier and Jos. Penny, 2nd, 10.20 $244.27 “ Interest for three months and grace, 8.79 $24&06 [58] “ Settled by note of A. K. Hellier, with Joseph Penny, 2nd, and D. W. Davis sureties, payable in three months, at bank in Bangor, I retaining my lien on lumber as provided in permit. W. C. Crosby.” The note given for stumpage was not paid at maturity, and the question presented for determination is whether the plaintiff by taking it has discharged his lien on the lumber cut. It has been settled in Massachusetts by a uniform series of decisions from Thacher v. Dinsmore, 5 Mass. 299, to Lord v. Bigelow, 124 Mass. 185, that a negotiable note, given to a creditor for the amount of a pre-existing contract, is prima facie to be deemed a payment or satisfaction of the debt. This presumption, however, may be rebutted and controlled by evidence that such was not the intention of the parties. In many of the states the taking of a promissory note is not to be regarded as payment, unless by special agreement to that effect. Clark v. Draper, 19 N. H. 423. In this state we have uniformly adhered to the rule adopted in Massachusetts. The acceptance of negotiable paper for a debt, and giving a receipt in dischai’ge thereof, are an extinguishment of the original liability, unless it appears that the pax’ties did not so intend. Milliken v. Whitehouse, 49 Maine, 527, Ward v. Bourne, 56 Maine, 161. Paine v. Dwinel, 53 Maine, 52. The evidence is conclusive that the plaintiff did not take the note in suit in absolute payment of his stumpage. By the terms of the permit the lien for stumpage was to rexnain until any paper given for it should be paid. The receipt, too, which was given for the note unmistakably shows by the most express language that the plaintiff intended to retain his lien “ as provided in pex’mit.” In such case the lien remains in full fox’ce, the notes being only payment conditionally. As remarked by Peter’s, J., in Prentiss v. Garland, 67 Maine, 345, u the notes wex’e l’eceived to be a discharge of the lien when paid. If the notes had been paid, the stumpage would have been paid. Whexiever the notes are paid the lien is gone.” So hei’e the lien continues in accordance with the terms of the permit as security for the note equally as for the stumpage before it was given. [59] Here is no bargain nor delivery of personal property within It. S., c. Ill, § 5. There is only an agreement to discharge a lien upon certain property upon a condition thereafter to be performed. The principal value of the logs arose from the labor of the permittees. The right to cut and remove on certain conditions had been acquired from the owner of the real estate. There has been no subsequent sale. The note was not given for the purchase of logs, for none were then purchased. It was given to discharge a lien which the plaintiff had a right to impose, but it was given on condition, and the condition not having been performed, the original lien remains in full force. Judgment for plaintiff. Daneorth, Virgin, Peters and Symonds, JJ., concurred.