Crane & Ward v. D. & R. McDonald

By the Court, Geo. G. Barnard, J. The plaintiffs were entitled to recover upon the pleadings, in the absence of proof. In order to destroy the plaintiff’s action, it was necessary for the defendants to prove that the note of D. McDonald & Co. was ’given to the plaintiffs and received by them upon the express agreement by them that it should extinguish the account against the defendants upon which this action is brought. (Noel v. Murray, 13 N. Y. Rep. 168.) The referee has not found this fact. He has only found that the goods mentioned in the complaint “were duly paid for by the defendants by the delivery by the said defendants to said plaintiffs and the acceptance by said plaintiffs of the note of D. McDonald & Co.” Something more is needed, to establish this defense of payment of a pre-existing debt by a note of third persons. The exception to the referee’s conclusion of law that the debt was paid, from this finding of fact, is well taken. Payment does not follow the finding. The weight of evidence, as shown by the case, is strongly against the defendants upon the question of the note having been received in discharge of the defendants’ debt by the plaintiffs. The defendanthave the burthen of proof on them. They have not estab [356] lished a payment by the finding of fact of the referee, nor by the evidence in the case. New York General Term, November 6, 1865. There should he a new trial át the circuit; costs to abide the event. Ingraham, Leonard and Geo. G. Barnard, Justices.]