Goodall v. Richardson

Gilchrist, J. The two notes signed by Samuel Noyes, having been pledged by the defendant to the plaintiff as collateral security for the defendant’s debt, the first question that arises here is, whether the plaintiff has so conducted in relation to them as to make himself chargeable with their amount. It is contended that the reception of the $85.00 note is to be regarded as a payment of them, and that upon their payment, the plaintiff became answerablp to the defendant for their amount, according to the contract. No w a promissory note is regarded as payment of a preexisting debt, where there is an express agreement to receive it as payment. Jaffrey vs. Cornish, 10 N. H. Rep. 505. Here there was an express agreement to receive in payment of the two notes, a note for a sum equal to their amount, with the addition of $ 15.00. Such a note was never made, for there was an error in the computation of the sum due on them. Now although the plaintiff not being aware of the mistake, received and filed the note, and supposed the agreement was complied with, yet as it was not complied with, why should he be charged ? A mistake of fact like this, has never been held incapable of being corrected, and our opinion is, that as such a note was never received as the parties agreed should be given, the two old notes cannot be regarded as paid. It is said that as the plaintiff delayed collecting the two notes until the failure of B. and S. Noyes, and as they were solvent when the notes were given, he should for this reason be charged. But the defendant never suspected that Samuel Noyes was embarrassed, and never requested the plaintiff to commence a suit on the notes. If there were any reason to [573] fear that he would fail, the defendant should have known it, and should have notified the plaintiff. If there were no reason to suspect it, then no negligence can be imputed to the plaintiff. It certainly cannot be regarded as negligent, that he did not compel a man of ample property to pay a debt of seventy or eighty dollars for the period of five months. The opinion of the court is, that this action should be sustained for the $51.00 note, and for the sum of $12.68, according to the report, and for these sums there should be Judgment for the plaintiff.