Sage v. Walker

Martin Ch. J.: The charge of the Court was clearly correct, and settles the whole case, rendering a consideration of the questions of evidence unnecessary. The effect of taking a second note upon the vitality of [427] “the first is sometimes determinable by the law, and sometimes by the contract under which it was given and received. In the present case the correspondence of the parties, which went to make up the contract, shows that the second note was given and received in discharge “of the first. Walker sent forward that note to be retained Only upon condition of a surrender of the first. Sage was bound to return one or the other. By retaining both, he left it with the defendants to say that he had taken the Hew note upon the conditions Walker required, and the first note must be considered as surrendered up. This appears to have been Sage’s view, when he had by carelessness omitted to have the second note presented and protested; for he asked for a third note in renewal of the second. 'The judgment is affirmed, with costs. The other Justices concurred.