Crawford, the promisee, agreed with Johnson & Co. that they should have the proceeds of the note, and to insure it to them, he endorsed it. The note was not purchased by Johnson & Co. Crawford’s note to them was not given up in consequence of his endorsing the Smith note. Johnson & Co. may, therefore, be deemed mere trustees of Crawford, to collect the note, and apply the proceeds to the payment of their note against Crawford.
But Crawford put an end to their interest by paying his note, after this suit was commenced.
Crawford has always in fact been the owner of the note. Johnson & Co. had an interest in it until their note was paid, but the plaintiff has never had any interest.
The note offered by the defendant may, therefore, very properly be received in set off. 6 N. H. R. 27, Woods vs. Carlisle.
The tender to the attorney is altogether defective. The note the defendant had against Crawford could not be legally used for the purpose.
The law considers nothing in such case as a legal tender but money, and it must be unconditional. The attorney could not judge whether to receive the note.
The amount of the note held by the defendant must be allowed in set off, and judgment be rendered for the plaintiff for the balance.
Wilcox, J., having been of counsel, did not sit.