New-Hampshire Savings Bank v. Ela

Parker, O. J. The sums set down in the schedule, against the different articles of property, do not furnish even prima facie evidence of its value. For aught which appears, they were mere estimates of its value, by Atwood, the debtor. The case furnishes nothing to show that there was an appraisal ; and if there had been, the contract is that the property should be sold, and the avails applied towards the discharge of the demands. This furnishes no discharge to the defendant. But there is nothing in the case, to take it out of the principle, settled in Crosby vs. Wyatt, (10 N. H. Rep. 318.) The interest was received in advance, upon the note, October 5, 1833, from the principal debtor, and there is nothing to show, at this time, any knowledge, or assent, on the part of the surety. He was not then a trustee of the bank, nor is there any evidence that he then had any knowledge of its usages. There is no evidence that the note was made to be discounted at the bank, or that the defendant had any dealings with the corporation up to this time. We cannot, under these circumstances, presume any assent on his part. There is no proof to rebut this evidence of a contract to delay, or to show that any right was reserved. It is contended, that it is not to be presumed that any officer of the bank had a right to make a contract which would discharge a surety. But it appears from the case, that the treasurer of the bank was warranted in receiving the interest in advance, under the common usage. The cases cited, therefore, do not apply. [342] The treasurer had authority to do, and did, what furnishes prima facie evidence of a contract for delay. If he had attempted to make an express contract for delay, on any other terms, or for a different consideration, the argument that he had exceeded his authority, and that the bank was not bound, might perhaps have availed. If the defendant, with a knowledge of the fact that the interest had been paid in advance on the 5th of October, 1833, had subsequently recognized the note as an existing debt against him, that might furnish evidence of his assent to the payment of interest in advance, and the contract for delay. But there is no evidence of this. It does appear that he had, subsequent to that time, a knowledge of the usage to take interest in advance, and acquiesced in it. There is no express evidence of his assent to the several payments of interest on this note, after he became a trustee, in November, 1833, nor any particular evidence to show that it came under his care and superintendence. His assent to those payments might be inferred from his knowledge of the usage, if he knew the note was in the bank, and no measures were taken for its collection. But this would not be a recognition of the debt, as one existing against himself. If, after he was in fact discharged, he had given an express assent to the reception of interest, and a contract for delay, this would not restore his liability, although it might not have been a prudent exercise of his official authority, to permit the note to lie in that manner. He may have neglected his duties as an officer of the hank, but we cannot, from any mere omission to proceed with the collection of the debt, find a recognition of it, as an existing debt against himself. Nor can the defendant’s signature to the indenture of assignment, as a party of the third part, avail, as evidence of an acknowledgment that he was under any liability on this note. There was a debt at the time due to him from Atwood, and the fair inference is, that his execution of the assignment had reference to his own debt. He was not at [343] that time a creditor of Atwood, by reason of having signed the note. If he executed the assignment on account of his liability on this demand, there should be something more direct than this case furnishes, to show that fact. Judgment on the verdict.