Bird v. Smith

34 Me. 63 | Me. | 1852

Wells, J.

Oliver 0. Woodman on tbe second Tuesday of June, 1850, recovered a judgment against the defendant on a promissory note given by the defendant to Benjamin H. Ellis, and which was negotiated by Ellis to Ephraim Woodman, and by him to said Oliver. The check in suit was received in part payment of the execution, which issued on the judgment.

The defendant contends, that the note was held by the Woodmans as collateral security for a sum much less than the amount of it loaned by Ephraim Woodman to Ellis, and he offered to prove, that the balance due on the note belonged to Ellis, that Ellis had prescribed the manner in which that balance should be paid, and that before the commencement of this suit, he had paid such balance in the manner directed by said Ellis. But the proof offered related to facts, which existed before the recovery of the judgment by Oliver O. Woodman. If any portion of the debt had been paid to Ellis or by his direction, and proof of such payment was admissible against Woodman, it should have been presented in defence of the former action. The judgment in favor of Woodman is conclusive evidence that it was due to its full amount when recovered. And the introduction of evidence, which existed before the rendition of the judgment, to show that it is not all due, would impair the force and effect which the law gives to it. If the judgment were in favor of Ellis himself, testimony, showing that the debt on which it was founded had been paid before the judgment, either in whole or in part, would be clearly inadmissible, for such testimony would directly contradict the judgment. If Woodman held the judgment partly for himself and partly in trust for Ellis, and a payment made to Ellis after it was rendered were admissible in evidence, on the ground of its having been made to the equitable owner, no evidence was offered of any such payment.

The proof offered, that both of the Woodmans had repeatedly offered to the defendant to receive from him the sum of three hundred and thirty-eight dollars and interest, in discharge of their claim on said judgment and execution, could have had no legal effect, if it had been received in evidence. The offer was not accepted and no money was paid, and the debt was unaffected by it. It was merely a proposition not accepted or acted upon. Nor does the letter of Ephraim Woodman, if it were admissible in evidence upon proof that he was part owner of the execution, show any part of it to have been paid, but on the contrary it denies, that either he or Oliver has received any part of the debt. His expression of a willingness to make a proper adjustment does not tend in the remotest degree to establish any fact showing the judgment has been paid or satisfied in any manner whatever. And if Oliver had received a portion of the judgment while the balance belonged to Ellis, and that was known to the defendant, his release of the, whole could not have deprived Ellis of his part, and facts existing anterior to the judgment could not have been received to defeat his title to such part.

The testimony offered was properly rejected, and the amount of the check, which was taken in part satisfaction of the execution, is recoverable in this action.

Defendant defaulted.