Aultman v. Jett

Cole, J. We think the circuit court erred in charging the jury that the defendant could recover from the plaintiff the difference between the contract price of the machine and what it was actually worth, and that, if this difference exceeded the amount of the note sued on, they were entitled to a judgment for the excess. This was treating the transaction as though the defendants had paid the full contract price of the machine, whereas it appears that they had in fact only paid $50 for freight, and $60 upon the note in suit. This is all they had paid of the consideration money. It is true, they had given their promissory notes to the plaintiff for the remainder of the purchase money, and these notes were outstanding. But this did not place the defendants in the position they would have occupied, nor give them the rights they would have had, had they actually paid for the machine. In this state the law is well settled, that the taking by the creditor of the promissory note of the debtor, either for a precedent liability or for a debt incurred at the time, does not operate as a payment unless it is expressly so agreed by the parties. Paine et al. v. Voorhees, 26 Wis., 522, and cases cited in the opinion. Such being the rule, it is obvious that payment in the present case would not be implied or presumed from the mere giving of the notes. In support of the view of the court below, it is said that the notes may have been negotiated before due, and, if so, the defendants will be bound to pay them to the holder. There is, however, no evidence that the notes have been transferred, and, in the absence of all proof upon the point, the presumption is that they are still held by the plaintiff. This is the presumption of law until the contrary is shown. If the notes still belong to the plaintiff, they cannot be treated as payment of the contract price, unless it was so agreed at the time. [492] ' But it is argued by counsel for the defendants, that it would be unjust to deny to them a recovery in this action for all the damages which they sustained by a breach of the warranty of the machine over and above the note sued upon, and compel them to substantiate their claims as often as the plaintiff might bring suit upon the outstanding notes. It may possibly be in the .power of the circuit court to protect the defendants against any liability on those notes, by requiring the plaintiff to surrender them on the trial, or by staying the action until they are produced. But as that question is not before us, we refrain from expressing an opinion upon it. It is sufficient to say that, as the defendants have not paid the contract price of the machine, they are not entitled to the same measure of relief as though they had. This view is fatal to the judgment. The judgment of the circuit court must be reversed, and a new trial awarded.