6 Minn. 468 | Minn. | 1861
By the Court —
— This was an action brought by Plaintiffs below (here Appellants,) to recover a balance due for goods and merchandise sold the Defendants, amounting to $271.04. The Defendants pleaded payment by an accepted draft on Caldwell & Co. of. St. Paul. The Plaintiffs replied that the same was taken only as collateral security, and not as payment. This was the principal issue raised, and the only one which it is deemed material to notice.
There was a jury trial, and a verdict for the Plaintiffs. The Defendants move for a new trial on a case, which motion was granted, and from that order the Plaintiffs appeal.
The Defendants, among .other things, requested the Court to charge the jury that the onus of proof was upon the Plaintiffs to show that the accepted draft so received by them was not received in payment. The Judge refused so to charge, .and on the contrary then instructed and charged the jury that the delivery to and acceptance by the Plaintiffs of the draft accepted by Caldwell & Co. was no evidence of payment, and that the onus of proof rested upon the Defendants to prove affirmatively, by other evidence, that the Plaintiffs received it as payment. The Judge who tried the cause thinks the case as settled shows an error in fact, and that the instruction to the jury was not as above stated. But that as he can
Tbe question has been very much discussed as to what constitutes presumptive evidence of payment in this and analogous cases, and tbe whole question is very fully examined in Am. leading Gases, p. 170, et seg. It will be seen that tbe authorities are somewhat at variance, but without entering upon any discussion, of the question here, I thinlc the weight of authority is to the effect that the taking tbe note or security of a person other than the debtor, is not prima faeie evidence that the same was taken in payment of a precedent debt. There must be evidence of an express agreement to take such note in payment, in order to give it that effect, and the burden of proof is upon the debtor to show such agreement.
But the rule seems to be different where a commercial instrument is given in payment of a contemporaneous sale, and the vendee is not liable on the instrument. In such case the presumption of law is that the vendee is not liable on the original indebtedness. In the case at bar, the vendees have made themselves parties to the instrument given to the vendor, the draft on Caldwell & Co. having been drawn by Capt. Western, President of the Pioneer- Guards, and in his evidence he swears that he had authority to draw the drafts as Captain of the company. I have examined the authorities with care to ascertain whether in sxich case there is any legal presumption that the instrument was taken in payment, and although there is some uncertainty in the language used in some of the cases, I think the weight of authority is clearly against such presumption.
The case of Whitbeck vs. Van Ness, 11 John., 409, is cited by Nespondents’ counsel, and is a leading one in this class of cases. By reference to that case it will be seen that the ven-dee not only was not a party to the note given in payment for the horse, but the evidence showed that he did not intend to render himself liable on the note or in any other manner. Spencer, J., in reviewing the English authorities cited in that case, refers to the Bank of England vs. Newman, 1 Lord Raymond, 442, and 12 Madison, 241, in which Lord Holt
In Olcott vs. Rathbone, 5 Wend., 490, it is claimed that the Court decided that “ the general principle is that a bill or note is no satisfaction of any demand tor which it has been given ; it is only jprima facie evidence of payment.” This language it is true appears in the opinion of the Court in that case as a quotation from some author, (Bayley on Bills I think,) but neither from the syllabus nor the opinion does any such point appear to be decided in that case, but that where a creditor had received the check of a third person in payment of a precedent debt, which check was dishonored, the creditor might recover on the original consideration.
The case' which most strongly supports the view taken by the counsel for the respondents, is that of Frisbie vs. Larned, 21 Wend., 450, in which it is stated in the syllabus, that “ the acceptance of the note of a third person from one of the mem
Edwards on Bills, p. 195, states that “ when a vendor, on a sale and delivery of goods, receives from the vendee the note of a third person for the price, the presumption is, that he takes it in payment; especially is this so where he gives a receipt for the note in full for his bill.” But he also states on the following page, that “any act, such as indorsing or guar
In Booth vs. Smith, 3 Wend., 66, it was held “ that the acceptance in full satisfaction by a creditor, of a note of a third person for the whole amount due on a previous note given by his debtor, is an extinguishment of the original consideration.” The difference between that case and the present, is apparent without comment. And in Noel vs. Murray, 3 Ker., 168, a note of a third person was given on sale of goods, on which the vendee’s name did not appear, and a receipt in full was given for the goods sold. And in St. Johns vs. Purdy, 1 Sand., 9, the note of a third person given by the debtor, was held as payment, on the ground that there was explicit evidence to show that the creditor had so agreed to receive it.
In none of the cases cited, therefore, (save those from Massachusetts Reports) do I think the doctrine can fairly be deduced, that the acceptance of a draft by the vendor of goods at the time of sale, drawn by the vendee upon a stranger and accepted by him, is to be deemed prima facie evidence that the same was taken in absolute payment of the purchase money. On the contrary, there are several authorities where the opposite doctrine is held, and I think supported by the better reason. In Johnson vs. Weed, 9 John., 310, where the vendor of goods took the note of a third p erson in payment and gave a receipt in full for the debt, but remarked that it should have been endorsed by the vendee, to which the latter replied that it made no difference, the Court held that it was a question of fact for the jury to determine at whose risk the note was to be. And in 2 Amer. L. C., 187, after discussing the effect of taking bank bills as payment, it is stated that there is much less reason for supposing that payment for a contemporaneous sale in the bills or notes of an individual is absolute, than where it is made in bank notes; and it would seem that this effect cannot be ascribed to it as a matter of law, and apart from the agreement of parties. The
A further argument in support of this doctrine is derived from the construction wjdch is put on an agreement to take commercial securities in payment for a contemporaneous sale, in cases where the securities are not delivered. In such circumstances it is well settled that indebitatus assumpsit will lie for the purchase money, at the period when the bill would have reached maturity had it been delivered. It is difficult to see on what principle this is allowed in such cases, and not permitted where the bill has been delivered. The presumption is as strong in the one case as in the other, that it was the intention to take the bill in payment.
Erom the foregoing authorities it will be seen.that, upon a contemporaneous sale of goods, where the vendor receives commercial paper upon which the vendee’s name appears in form that may render him liable, the law raises no presumption that the same was received in payment, but the question
We have treated this subject as though the draft was given on a contemporaneous sale of goods, though as a matter of fact it is claimed by the appellants that it was given for a precedent debt, and that question would perhaps be a proper one for the determination of the jury. But the charge would be still less open to objection .if the draft were given for a pre.
The order granting a new trial is reversed, and judgment ordered in favor of the Plaintiffs.