Matteson v. Matteson

LyoN, J. The complaint may be inartificially drawn, yet we think it states a cause of action in favor of the plaintiff. The condition of the bond is that within six months the defendant will pay the plaintiff $620 and interest, and also will pay the plaintiff or ITiram Smith $500 and interest. The first condition is not in terms that the defendant will pay the note for $620, held by the plaintiff, but that he will pay the sum for which that note was given. The ’ plaintiff, therefore, held, for the same debt, the note, and the bond and mortgage. Under an elementary rule of law, the note, in the hands of the plaintiff, became merged in the bond, and was thereby entirely extinguished. Hence it was quite unnecessary for the plaintiff to allege that she is still the holder of the note, for in her hands it is mere waste paper. The defendant can only claim protection against it, in case it should get into the hands of a bona, fide holder for value before due, and the court will give this protection, by requiring the plaintiff to produce the note for cancellation before judgment goes upon the bond. It follows that, as to the $620 mentioned in the condition of the bond^ the averments that the plaintiff is the owner and holder of the bond and mortgage, and that such sum is justly due her thereon, sufficiently show her right of action. It - is unnecessary to consider whether the complaint states a cause of action for the $500 due Hiram Smith, for all that portion of the complaint may be stricken out, and still it would state a cause of action, It may be said, however, that the plaintiff is jointly bound with the defendant for the payment of that debt, and the defendant has cov 453 enanted in bis bond to pay the amount to Smith or the plaintiff. He has paid it to neither. We perceive no valid reason why those facts do not entitle the plaintiff to have that sum included in the computation of the amount due on the bond'and mortgage. By the Gourt.— Order affirmed.