Crary v. Bowers

| Cal. | Jul 1, 1862

Cope, J. delivered the opinion of the Court—Field, C. J. concurring.

This is an action upon a note and mortgage for four thousand dollars. The defense set up grows out of an arrangement by which one Benedict assumed the payment of this indebtedness. Two notes, payable at different times, were executed by him for the amount, and these notes were delivered to and accepted by the plaintiff. The original securities, however, were not given up, nor does it appear that the notes were received in satisfaction of the demand arising upon these securities. The Court finds that the parties intended a conditional payment, and there is no doubt that such was the object and effect of the transaction. The debt was not extinguished, and the acceptance of the notes only operated a temporary suspension of the remedy for its recovery. The liability of the defendant was not affected, and payment of the" notes -at maturity was necessary to prevent the plaintiff from enforcing it. The first of the notes became due and was not paid, and the action was commenced before the second note had matured. The defendant contends that the suit was prematurely brought, and that the remedy as against him was suspended until the maturity of the second note. This position is obviously incorrect, for the notes were taken upon the understanding that they were to be paid according to their terms, and the failure in respect to the first note entitled the plaintiff to put an end to the transaction. The agreement on his part was to receive payment in a particular maimer, and the contract ceased to be binding upon default of payment in the manner agreed on.

The point in relation to the 'sale of the notes is not well taken. It appears that the notes were sold, or attempted to be sold, under execution, but this occurred after the commencement of the suit. The plaintiff had then elected what remedy to pursue, and the notes remained in his possession and were delivered up at the trial.

Judgment affirmed.