Farr v. Stevens

The opinion of the court was delivered by Isham, J. The auditor has reported a balance of account due the plaintiff, subject to the question whether that balance, upon the facts reported by him, has been paid or satisfied. There has .not been so great disagreement between counsel, as to the law governing the case, as there has been in relation to this facts found by the auditor ; and different constructions, in that respect, have been given to the report. If any doubt existed as to the facts in the case, a recommitment would be necessary; for it is not within the province of this court to ascertain and determine them. We apprehend no reasonable doubt can exist on this subject. In the month of January, 1851, the parties negotiated for the sale and purchase of a yoke of oxen. The mode and manner of payment was apart of their mutual arrangement. The price of the oxen was fixed at $95, and payment for the same was proposed in a note against one Nelson, for the sum of $90, payable to the defendant three months after date. The plaintiff then agreed, that if Nelson did not pay the note he would, and proposed to give his liability thereon by indorsing the note; and insisted, if his liability was required, that it should be given in that way. In that manner, the liability of the defendant was finally given. The note was indorsed by him, and accepted and received by the plaintiff. These facts we must consider as found in the case; and from them it is evident that the indorsement of the note was assented to by the plaintiff, as the manner in which he was to have the liability of the defendant; and on which the plaintiff expressed his willingness to receive the note, with the five dollars in money, in payment for the oxen. On these facts, there can be no doubt, but that the acceptance of the note and money operated as payment [303] for tbe oxen; and that no action for the price of the oxen, or upon the original claim, can be sustained. The remedy of the party is to be had upon the defendant’s indorsement of the note, or his guaranty, whatever may be the form in which his liability on the note is given. This principle applies in all cases where payments of this character are made upon a claim which arose at the time of payment; and where, as in this case, it appears that the acceptance of the note, was a matter insisted upon as one of the terms or conditions of the purchase. Wiseman v. Lyman, 6 Mass. 286. In Hutchins v. Olcutt, 4 Vt. 549, it was ruled “ that a promis- “ sory note given and received in payment of an antecedent debt, “ is a bar to an action on that account, whether the note be paid “ or not; and if a person accept a note in satisfaction of his debt, “ he is paid by his own agreement, and cannot sue for his original “ debt, if there be no fraud or deception in giving the note,” — and surely, the force of this principle is not abated, where property purchased is paid for at the time, by a note, of a third person, indorsed by the purchaser, which the vendor agreed to receive in payment. The rule would be otherwise if the note was received as payment under any fraudulent representations, as to the solvency of the maker; 4 Vt. 549, — or if the note proved unavailable, from some inherent vice ; as illegality of consideration, forgery, and the like. In all these cases, if the defect was known to the debtor, and unknown to the creditor, the transfer of the note will not operate as payment, but the creditor or vendor, may treat it as a nulity, and sue on the original indebtedness. Gilman v. Peck, 11 Vt. 516. 15 Mass. 75. In the cases of Heald v. Warren, 22 Vt. 413, Tracy v. Pearl, 20 Vt. 163, it was held, that where an order or draft was drawn by the debtor on a third person to pay a given amount to the creditor, that such draft would not operate as payment, when it was drawn without funds in the hands of the drawee, or if it was done, as a mere matter of accommodation, such a draft will not merge the original claim “ for the best reason in the world, the parties did not so intend it.” The giving of such a draft, will be treated as a fraud. 2 Smith’s Lead. Cas. 55, (note.) There is no pretence in this case, but that the note transferred to the plaintiff, was justly due; that the maker at that time was [304] solvent; and that no fraud was practised by the defendant, to induce the plaintiff to take the note. But on the contrary, it is expressly stated, that on the defendant’s giving his personal liability to pay the note, and in the mode it was given, the plaintiff agreed to take the note in payment. Under these circumstances, the delivery and indorsment of the note was a merger of the original claim for the oxen, and the remedy of the plaintiff is upon the note against the maker, or upon the indorsement against the defendant. Whether the plaintiff has made the note his own, as against the indorsor, by any neglect to pursue the maker, we are not called upon to decide, as we are satisfied the action on book cannot be sustained, for the price of the oxen. The judgment of the County Court is affirmed.