Parsons v. Administrators of Gaylord

Spencer, J. delivered the opinion of the court. The defendant insists, that the consideration of the note on which the present suit is brought, has failed, because Bartlett, with whom Carmer, one of the makers of the note, had contracted for the purchase of a piece of land, refused to consider the note as a payment on the bond given for the land, and had become a bankrupt, and wholly unable to convey a title for the land pursuant to his contract. There is a contrariety of evidence, as to what passed when the note was given; and the jury, without deciding on the credit of the witnesses, have given a verdict under the direction of the judge, who considered the evidence of an agreement to give up the note, and of Bartletfs refusal to admit it in payment, as irrelevant. It is necessary, therefore, to inquire merely whether the agreement set up by the defendant can operate as a defence in this action. It is clear that the giving the note by Carmer and his taking possession of the bond, under the authority given by Bartlett to Freligh, amounted in'lav/, to a payment, and any dissent of Bartlett afterwards, must be unavailing. The agreement that Bartlett should allow the note as a payment, was in effect performed, since he could not legally disallow it; and his subsequent dissent, after he was thus concluded by the acts of his agent, was vain and idle. Carmer had also in his possession the [465] fullest evidence to show that he had paid, as between him and Bartlett, what he was bound by his bond to pay. The subsequent bankruptcy of Bartlett, cannot affect or vary the case. If Carmer chose to part with his money, before he acquired a title for the land, it was a want caution on his part, for which he must blame himself. The Court are, therefore, of opinion, that the direction of the judge was fcorrect, and that the plaintiff is entitled to judgment. Judgment for the plaintiff.