20 Conn. 258 | Conn. | 1850
The original action was book debt, and was referred to auditors. At the trial before them, the plaintiff introduced in evidence two promissory notes, signed by Randolph Stockbridge, who was one of the defendants when the action was commenced, but has since deceased. The present defendant was interested in his business as a dormant partner. The notes were given for money borrowed, by the concern; and it appeared, that the parties had had other dealings, and that a copy of the plaintiff’s account, including these two charges, with other items, admitted to be properly charged on book, was made out and presented to Mr. Stock-bridge, and he made no objection to any part of it, though he kept the account for a considerable time before his death.
The notes were not in the ordinary form of such instruments, but rather in the form of memorandum notes.
The defendant objected to the admission of the notes in evidence; but the auditors admitted them, and allowed them to the plaintiff in the adjustment of the account; and the superior court, on remonstrance, having accepted the report, the question is, whether this decision was correct. We are satisfied that it was. The plaintiff in error does not complain of it, on the ground that money lent may not properly be charged on book. This, according to Judge Swift, was a question formerly made in our courts; but he intimates the opinion, that money may as well be entered on book as any other article; and, since his day, the practice of so charging
The defendant insists, however, that by taking notes for the sums as they were advanced, the party has deprived himself of the right to charge and recover for them as a book debt. But a note is a security of no higher nature than a book debt; they are both simple contract debts; and there can be no merger, or extinguishment of one by the other, unless it is so agreed by the parties. Bill v. Porter, 9 Conn. R. 23.
If, then, these sums were properly charged on book, at the times when they were advanced, it is clear, that the taking of notes for them also, was not an extinguishment of the book debt. Undoubtedly, a party may accept a note in satisfaction of a book debt; and so he may give up a note as paid and satisfied, and agree to charge the amount on book. But nothing of this sort is shown, or claimed even. The naked claim is, that the taking of a note for money, precludes the party from charging it on book. This not being so, the right to charge these sums on book all depends upon the understanding and agreement of the parties at the time; and this from all the circumstances proved in the case, was determined by the auditors, as a question of fact, rather than of law. It is impossible for us to say, that it was not proved before them, that the money was not advanced, and charged, long before the notes were given; but whether this was so, or not, if the circumstances were such as to satisfy the auditors, that the parties intended that an account should be kept of the advancements, on their books, the notes, as we have seen, do not operate to extinguish the account; and the finding would be conclusive upon the fact. We could not review it, even had the notes been in the usual form, and had there been no evidence of the presentation of the account to Mr. Stockbridge, with no objection to it by him. It would still have been a question of fact, whether the right to charge existed at the time. If, however, we were to go into this question, we could not doubt that the decision of the auditors was correct. The memorandum notes taken by Mr. Savage, indicate, that the loans were temporary accommodations, not intended to remain any considerable time unpaid;
We are of opinion, therefore, that there is no error in the judgment complained of.
Judgment affirmed.