Greenawalt v. McDowell

The opinion of the court was delivered, July 7th 1870, by Read, J. This is a suit on a joint and several promissory note, payable to the plaintiff or order, on demand, for $6000, with interest from date, November 28th 1864, and signed by Peter [468] Brough, Samuel E. Grreenawalt, tbe defendants, and John A. Brough, the two latter as security. Upon this note payments were made of a year’s interest on the 11th December 1865, of another on the 14th January 1867, and of $1399.27 on the 23d September 1867. Mr. McDowell, intending to go West, wanted some money from Peter Brough, who raised it on the 12th September 1867, by getting their joint and several note for $2500, payable ninety days after date, discounted at the banking house of Austin, Elder & Eletcher, the proceeds being paid over to the plaintiff, amounting to $2420.42. When Brough paid this note, he was to have credits for the amount on the $6000. This he never did, but the note for $2500 was taken up and paid by the plaintiff, leaving the $6000 unpaid, except so far as the before-mentioned payments reached. Mr. McDowell said, “ I put the receipt for the money on the note in suit the day before I went away, which was 23d September 1867.” The receipt was in these words: “ Received, September 12th 1867, of Peter Brough, per William S. Eletcher, $2420.42, on a note of $2500 for ninety days, for which I went security. Alex. E. McDowell.” Speaking of this, Mr. McDowell said: “ The credit was not put on the note in pursuance of any agreement with Brough; we never spoke of it after we came out of the bank that day. I put the credit on because I was about to start West, and was going to leave the note behind with my son, and I thought something might happen, or that the note might be renewed and kept alive, and there was not much risk.” There was nothing in the objection to the admission of the par-ol testimony of the plaintiff to explain the receipt and the attending circumstances, and we think the court were perfectly right in refusing to affirm the defendants’ points, for there was nothing showing any suspension of the right of action on the original note, much less any extinguishment or satisfaction of any part of it. The judge’s charge is clear and satisfactory. Judgment affirmed.