Viles & Atkins v. Moulton

The opinion of the court was delivered by Williams, Ch. J. This was an action on note. The note was not produced in evidence, but the plaintiff endeavored to prove its loss and contents. The first objection which was raised on the part of the defendant was, that there was no count in the declaration upon a lost note. We think that there is no necessity for such a count in any case. Whenever it becomes necessary to make a profert of an instrument, if it is lost, there must be an averment of the loss. But, in a declaration on a note, no profert is made.— It is not usual, and not required in the courts of the United States, to declare specially on a lost note as lost. 9 Wheat. R. 581. Further, in this case, it appears the note was lost after the issuing of the writ and declaration. We believe, however, that there was no sufficient evidence of the loss. •There was no examination of the papers of Judge Collamer, who had been counsel in the case, or of Blake, among [475] whose papers we should expect the note would have been kept. But if the proof, on the part of the plaintiffs, was sufficient to show the existence, loss and contents of the note, the testimony offered on the part of the defendant should have been admitted. The evidence offered yras to prove that the defendant was co-surety with Edson & Story for William Ford, that Ford executed a mortgage of property to indemnify Edson & Story, of the value of $20,000, amply sufficient for that purpose, and this must, of course, have inured to the benefit of the defendant; that Ford subsequently mortgaged the same property to Blake to secure the sum of $9,500, and also mortgaged other property to Blake, to be discharged on Ford’s paying this debt to Viles & Atkins, and that Blake purchased in the equity of redemption to the mortgaged premises, and then paid the notes, now in suit, to Viles & Atkins. If suchfacts had been proved, no recovery could be had on the notes by Viles & Atkins or in their names, inasmuch as the demand was paid by the person who had the equity of redemption in the mortgaged premises, and who was also a second mortgagee. Blake could not, after this, retain these notes against the mortgagor and be considered as a purchaser, but they must be taken as paid and satisfied. This principle was recognised in the case of Converse v. Cook, 8 Vt. R. 166. This evidence, it appears, was excluded on the ground of its not being a defence. This has already been considered. It was also excluded on the ground that the same question had been .adjudicated in a suit in chancery. But, inasmuch as the plaintiffs resorted to parol testimony to show what had been considered and adjudicated in that court,it was improper for the court to assume that this fact was proved, and on that ground exclude the evidence of the defendant, as the testimony on the part of the plaintiffs might have been discredited. There is also a further objection to this course. There was no decree drawn up in the suit in chancery, and we cannot perceive that the court ever passed upon the defence here set up, or found any facts inconsistent with those offered to be proved, or that the subject matter of this defence was ever adjudicated upon. The evidence offered should have [476] been admitted and gone to the jury, under proper instructions, and if the defendants were estopped from setting up this defence by any previous adjudications on the same subject, or if they failed to make their proof, as offered, the jury would have found accordingly. The judgment of the county court must be reversed, and the case remanded for trial.