Haynes v. Thom

Eastman, J. From a perusal of this case there can be no doubt that the note in suit was given by the defendant, in consequence of his having receipted for a horse attached in the original action Haynes v. Clark ; and the question for us to decide, whether the evidence introduced was competent to be submitted to the jury to show the note to be without consideration. If the note was without consideration, the plaintiff must fail in his action ; for want of consideration is a good defence to a promissory note, in a suit between the original parties. This is well settled. Copp v. Sawyer, 6 N. H. Rep. 386 ; Parish v. Stone, 14 Pick. 198; Hill v. Buckminster, 5 Pick. 391; Schoonmaker v. Roosa, 17 Johns. 301; Fink v. Cox, 18 Johns. 145; Barnum v. Barnum, 9 Conn. Rep. 242; Slade v. Halstead, 7 Cowen 322; Vallett v. Parker, 6 Wend. 615; Earl v. Page, 6 N. H. Rep. 477; Bulloch v. Agburn, 13 Ala. Rep. 346 ; Calder v. Bellington, 3 Shepl. 398 ; Barnett v. Offerman, 7 Watts 130; Geiger v. Cook, 3 Watts & Serg. 266. But the release of an attachment is a good consideration for a promissory note. Hackett v. Pickering, 5 N. H. Rep. 19. And upon the same principle, a discharge from liability, as the receiptor of property, so long as the liability continues, must also be a good consideration. Was Thom, then, liable as receiptor at the time he gave the note, and had the receipt any validity which could form a consideration for the note ? It is contended in argument that there was no competent evidence of the contents of the receipt, or of the nature of the attachment upon the writ Haynes against Clark; that the evidence offered upon these points was all secondary. It is true, that the receipt was not produced, nor any season given for its non-production; neither was the writ [398] produced, showing the attachment. But in order to make these objections valid, they should have been specifically raised at the trial. Secondary evidence is frequently admitted without laying the foundation for it, if there is no objection taken at the time it is offered. A general exception to the competency of evidence as not showing a defence, cannot reach specific exceptions as to the nature or degree of the evidence. Mc Conihe v. Sawyer, 12 N. H. Rep. 396 ; Concord v. Mc Intire, 6 N. H. Rep. 527. If these exceptions, suggested in the argument, had been taken at the trial, they could probably have been obviated ; but after verdict it is too late to take exceptions which the other party might have obviated by evidence, if they had been seasonably taken. North v. Crowell, 11 N. H. Rep. 251. Stripped of these technical exceptions, which cannot now prevail, the evidence in the case tended to show that the defendant receipted for a horse belonging to Clark, which was attached in the suit Haynes against Clark, in which suit judgment was recovered on the 10th day of September, 1845, that being the last day of the August term of the common pleas for that county held at that time. On this judgment execution was issued on the 18th of October following, and a demand made of the defendant for the property, probably about the 10th of November, 1845. Upon this state of facts, which, it is said, were known to the parties, it is contended that the surrender of the receipt to the defendant was a sufficient consideration for the note. But we cannot so regard it; and it appears to us that the jury might well find that the note was without consideration, and upon two grounds. In the first place, Thom was discharged from his liability as receiptor, by the failure to take out execution on the judgment Haynes against Clark, and make demand on the receipt within thirty days. Property attached is holden only [399] until the expiration of. thirty days from the time of rendering the judgment. Comp. Stat. ch. 195, § 35. Probably the error in not having a seasonable demand made for the property grew out of the mistaken notion that judgment was not rendered until it was fully made up and drawn out. The judgment was no doubt drawn up in form, on the 18th of October, the day on which the execution was issued, and not before. But the time on which a judgment is rendered, unless there is some special order of the court to the contrary, is the last day of the term, and such was undoubtedly the fact here. The record shows that the judgment was rendered at the August term, 1845, and there being nothing in the record showing the contrary, the judgment must have been ordered on the last day of the term, which was the 10th of September, thirty-eight days before the execution was taken out. When a default has been entered in any action, the plaintiff may, if no continuance has been ordered, take judgment at any time afterwards, as of the term when the default was entered. But if judgment be thus taken more than thirty days after the end of such term, any attachment which may have been made by virtue of the original writ, will be ipso facto dissolved. Hackett v. Pickering, 5 N. H. Rep. 24. The judgment is rendered as of the term, not out of term, and the attachment continues in force for the thirty days only, from the last day of the term. At the time the demand was made on this receipt, and, in fact, where the execution itself was taken "out, the attachment was dissolved, and the defendant was, consequently, discharged from his liability on the receipt. The receipt was at that time worthless; it had no value for any one, and could in no way be enforced. ' It was put into the hands of Bailey to make demand on account of the attachment of Haynes against Clark, and that alone; and that attachment had, at that time, no legal existence ; the property receipted for could not be taken by virtue of the attach [400] ment, and the receipt was necessarily entirely valueless. There is no intimation in the evidence that the receipt was taken or held for any other object than this attachment. In the next place, the defendant duly tendered the property attached, to the officer when the demand was made, or at such time as the officer fixed; and thus, even assuming the receipt, at that time, to have been valid, the defendant’s liability as receiptor was discharged. A tender and refusal is not a discharge upon any bond with a condition for the payment of money; nor upon any contract or promise to pay money; but the duty remains, and he who pleads a tender, in such cases, must allege that he is still ready to pay, and must bring the money into court. Bac. Abr. Tender F.; Coke on Lit. 207. But in an obligation or contract for the delivery of specific articles, a tender and refusal of the articles is a perpetual discharge; and, upon the ground that the defendant, having done all in his power to perform the condition or contract, and having been prevented by the fault of the other party, the non-performance is by law excused. Coke on Lit. 207; Robbins v. Luce, 4 Mass. Rep. 474; Slingerland v. Morse, 8 Johns. 474; Coit v. Houston, 3 Johns. Cases 343; 2 Swift’s System 404; Chase v. Flanders, 2 N. H. Rep. 418. The law requires a party to keep a tender of money good, but with cumbersome and specific articles, whiqji are oftentimes perishable, and which cannot be kept without much ■expense, and trouble, in many instances it is not so; and when the tender is made conformable to law and the terms and conditions of the contract, it is of itself, without any further act or care of the party, a discharge forever from all ■recovery on the contract itself. Upon either of these grounds, the evidence was entirely competent to show the note to be without consideration, so far as the receipt is concerned. It is contended in argument, however, that the defendant had ample means of knowledge as to his liability, and must [401] be presumed to have given the note voluntarily and understandingly, and is thus bound to pay it. It is said, also, that the note was given to settle the execution of Clark against Haynes. But notwithstanding the defendant may have had the means of knowledge, and^notwithstanding the evidence tending to show the note to have been given for the execution, yet we cannot doubt that the defendant gave the note in order to clear .himself frcun- a bility^on his* receipt’"Tie may' have had the means of knowledge, and yet have been wholly ignorant of his true position in regard to the business. He had no wish to pay Clarke’s debt, and Clark denies having given any indemnity for it; and it is clear to our minds that, had the defendant imagined that the receipt could not be enforced against him he would never have given the note. We think the evidence was fully competent to show the surrender of the receipt to be the whole consideration of the note; and if th note was given under a misapprehension of the defendant’s liability, and with no valid consideration passing between the parties, he is not bound to pay it. An ideal danger, which has no foundation in fact or in law, can form no consideration for a note. Warder v. Tucker, 7 Mass. Rep. 449 ; Cabot v. Haskins, 3 Pick. 83. See also Farrington v. Brown, 7 N. H. Rep. 271; Merrimack County Bank v. Brown, 12 N. H. Rep. 325; Dunbar v. Marden, 13 N. H. Rep. 311. The result to which we have arrived does not discharge the indebtedness of Clark to Haynes. The execution was not assigned or surrendered at the time the note was given, nor the judgment discharged, and for aught that appears, the debt now remains uncancelled against Clark. Upon the whole, we entertain no doubt of the competency of the evidence to sustain the defence, and there must be Judgment on the verdict.