Hunt v. Boyd & Co.

Porter J. delivered the opinion of the court. This action is brought for the balance of an account of sundries furnished to the schooner Elizabeth, of which it is alleged the defendants are owners. The suit commenced by attachment. There was judgment against the plaintiffs and they appealed. If a creditor gives a receipt for a draft in pay-the debt is novatedThe judge of the first instance decided the cause in favor of the defendants, on the grond that the evidence shewed they were not the owners of the schooner — that she belonged to Armstrong, one of the firm of Boyd & Co.; and that he could not be made responsible in his private capacity, in an action against the partnership. The same ground has been assumed by the appellees in this court, but the decided opinion we have on another part of the case, renders it unnecessary for us to examine the soundness of the position. The captain of the schooner who is alleged to be one of the owners, liquidated the account of the plaintilf, and gave a draft on the defendants for the amount. On the receipt of the order, the plaintiff underwrote the account in the following terms: “ Received payment by draft on John Boyd & Co. at thirty days sight.” We are of opinion that the plaintiff, by taking this draft as payment of the account, extinguished it; and that suit cannot now be maintained on that, which was discharged by the agreement which the receipt evidences. Were we to give our reasons for this conclusion, we could only repeat what we said in the case of vs. How, which was decided after much consideration. The counsel for the ap-péllant,attemptedin argument to distinguish that cause from the present one, but it is impossible to malm a satisfactory distinction between them. In the former, the goods were sold to How, Ellis & Co. and payment received in a note of Talcut, one of the firm. In the instance before us the draft of the captain was taken. If he was part owner of the vessel, the analogy beween the facts of this case and that already alluded to is complete. If he was not, then payment was taken in the bill of exchange of a third person, and the result is, if possible, still stronger against the appellant. — 2 Martin, n. s. 144. This opinion renders it unnecessary to examine the bill [112] of exceptions, and it is therefore ordered, adjuged and decree(^ ju<Jgment of the District Court be affirmed with costs,