Christofferson v. Howe

Canty, J. On October 28, 1890, defendant made and delivered to plaintiff a promissory note for $377.90, and, to secure it, also made to plaintiff a chattel mortgage on some horses, harness, and farm utensils. Plaintiff brought this action to recover from defendant possession of a part of this property under this mortgage. On the trial it appeared that on December 1, 1891, plaintiff and defendant had a settlement of a mutual running account, consisting of several items on each side, the charges in plaintiff’s favor amounting to $1,125.95, including this item of $377.90 due on this note, and the payments on this account amounted to $862.75, leaving a balance due plaintiff of $263.20. This account was duly stated, and defendant gave a new note for $264 as the balance due. Plaintiff claims that this note is a mere renewal of the first note, and the mortgage given to secure the first note stands as security for the so-called renewal note. We are not of that opinion. When an account is stated, the balance struck becomes an original demand, the transaction amounts to an express promise to pay that balance, and the account cannot be examined to ascertain the items of that balance. Hawkins v. Long, 74 N. C. 781; McClelland v. West, 70 Pa. St. 183; 1 Am. & Eng. Enc. Law, 124. When a new note is given in settlement of the balance due on mutual running accounts of which a debt secured by a prior mortgage formed only a part, it is a satisfaction, and not a renewal, of that mortgage. Walters v. Walters, 73 Ind. 425. There is a clause in plaintiff’s mortgage which provides that it shall secure “any other note of said mortgagor given hereafter to the mortgagee herein as a renewal hereof.” We cannot see that this helps the plaintiff’s case any, or gives him anything but what the law would give him in the absence of this-provision. We are of the opinion that the mortgage under which plaintiff seeks to recover -was satisfied by the subsequent settlement, [70] and that the court below committed no error in dismissing- his action. As this disposes of the case, we will not pass on the other points discussed. The order denying plaintiff’s motion for a new trial is affirmed. Buck, J., absent, sick, took no part. (Opinion published 58 N. W. 830.)