Johnson v. Cleaves

Gilchrist, J. The facts necessary to be considered in this case are not numerous, and the principie to be applied to them is a familiar one. The plaintiff furnished articles for the use of the ship Fortitude, charging them to the “ ship Fortitude and owners.” It does not appear that ho know who the owners were, but Crane, one of them, the ship’s husband, sottledpvith Johnson, and gave his note for the amount of Johnson’s bill against the ship, on which Johnson unsuccessfully at complied to raise money, and Crane afterwards became bankrupt. Where a bill is given for a debt, and in payment of it, Lord Kenyon says, that if the bill which is given in payment do not turn out to be productive, it is not that which it purports to bo, and which the party receiving it expects it to be; and therefore he may consider it as a nullity, and act as if no such bill had been given at all. Puckford vs. Maxwell, 6 T. R. 52. If a party agrees to take notes as payment, and to run the risk of their being paid, that will be considered as payment, whether the notes have or have not been afterwards paid ; but without such agreement, the giving of such notes is no pajnnent. Owenson vs. Morse, 7 T. R. 64 ; Tapley vs. Martens, 8 T. R. 451. In accordance with this principle we have held, in Jeffrey vs. Cornish, 10 N. H. Rep. 505, that a promissory note is not a payment of a preexisting debt, unless there be an agreement to receive it in payment. Sven a judgment recovered in any form of action is still but a security for the original cause of action, until it is satisfied; and there must either be satisfaction, or the demand on which the judgment was recovered must have been [336] accepted in satisfaction of the original cause of action. Drake vs. Mitchell, 3 East 251; Tarleton vs. Allhusen, 2 Ad. & E. 32. It does not appear in this case that the plaintiff, by taking the note of Crane, obtained any advantage, or that the defendants sustained any injury. They settled with Crane as if he had actually paid the plaintiff; but they knew nothing aboutpt, nor did they inquire how he came by the plaintiff’s receipt. They were bound to pay their debt to the plaintiff. They chose to settle with Crane as if he had paid it for them, when he had not done so. The hardship, if any exists, is upon the plaintiff, who ought not to be injured by the course of dealing, which, without his knowledge, has been adopted between Crane and other persons to him unknown, and over whom he has no control. If the defendants had dealt differently -with Crane on the supposition that the plaintiff’s demand had been paid, as the receipt imported, and if Crane had enough of the defendants’ money in his hands to answer the demand, perhaps they would be discharged. Wyatt vs. Marquis of Hertford, 3 East 147. But Crane had no money of theirs in his hands, and they never inquired into the matter of actual payment. In the case of Robinson vs. Read, 9 B. & C. 449, & tradesman, who had supplied goods for a ship, sent in his account-to the ship’s husband, and received his acceptance for the amount due, the latter having in his hands a balance due the owner larger than the plaintiff’s bill. But as the owner never looked into the accounts, nor inquired how his agent was using his money, it was held that he was not injured by the plaintiff’s receiving the acceptance, and that the plaintiff was entitled to recover. And here the defendants never inquired into Crane’s transactions until after the note fell due. In Schemerhorn vs. Loines, 7 Johns. 311, the plaintiff supplied goods for a ship, charging them to “ the ship Eleanor, Mr. George Townsend, and owners.” Townsend, who was one of the owners, and the ship’s husband, gave his promissory note for the amount of the account, payable in ninety days, and the plaintiff gave him a receipt in full for the amount of the supplies. It did not appear that the plaintiff knew who the owners were at the time. Townsend died, and his estate was [337] insolvent. It was held that the defendants were liable. In the ease of Muldon vs. Whitlock, 1 Cow. 290, goods were ordered for the ship Cadmus, by Frederick Jenkins and son, the ship’s husbands, who, with Whitlock and Jenkins, were the owners, and the plaintiff knew who the owners were. Frederick Jenkins and son gave their note for the goods, and the plaintiff gave his receipt in full. But it was held that the defendants were liable. And both Woodworth and Sutherland, Justices, in remarking on the case of Schemerhorn vs. Loines, said that the fact that the plaintiff there did not know who the owners were, was not a point on which the decision turned. We think that this case is to be decided upon the principle that a promissory note is not a payment of a preexisting debt. The defendants have not shown that the settlement between Johnson and Crane in any way affected their dealings with Crane, or that they should have dealt differently with him, if they had been informed that he had given his note for the debt. There was no express agreement to receive the note in satisfaction, nor can we find any agreement, from the circumstances, which in proper cases may be submitted to the jury for that purpose. Brown vs. Kewley, 2 B. & P. 518; Reed vs. White, 5 Esp. 122; Thompson vs. Percival, 5 B. & Ad. 925. Judgment for the plaintiff.