31 Vt. 450 | Vt. | 1859
This is an action upon a joint and several promissory note, payable to the plaintiff or bearer, in one year, with interest, and executed by the defendants.
The verdict, under the charge, finds that the note was delivered to the plaintiff in payment of another note which she then held,
He is defending on the alleged ground that he signed as surety for the other makers of the note, but received no consideration for so doing; that at the time of signing it was agreed that before the note should be used, another person should be procured to sign it as surety; that it was used without such other surety being procured; that the plaintiff had notice or knowledge of these facts when she received the note, and that she did not surrender the note then held by her till several weeks after receiving the note in suit.
The charge of the court, in connection with the evidence, presents the question, whether the plaintiff having received the note in payment of a pre-existing note, with knowledge that Adams had signed it as surety, but without notice or knowledge of the alleged agreement between Adams and the other signers as to obtaining another surety, is to be affected in her right of recovery against Adams, by the fact of there being such an agreement.
It is understood to be well settled that a note, received in payment of a pre-existing debt, is received and held upon valuable and valid consideration. The jury have found that the note in suit was so received. It having been so received, we do not perceive how it could make any difference with the plaintiff’s rights as to this note, whether the old note was or was not surrendered at the time of receiving the new note. If she received it in payment, she had the right to hold it in payment, and while she should so hold it, it would operate as payment. She alone would be entitled to repudiate or deny its operation as payment. And this she could not do, except for the reason that it was false or unavailing paper at the time she received it.
As the case is thus presented by the evidence and charge, it seems to stand substantially upon the same point as the case of The Passumpsic Bank v. Goss & Page, decided at the general term, 1858; ante page 815. The court there held, upon full argument and careful consideration, that the payee could not be defeated of his right to recover against a surety by reason of such an agreement between him and the other makers, of which the payee had no knowledge.
The plea that was adjudged insufficient on demurrer, concedes the plaintiff to be the payee and holder of the note, without imputing a want of consideration or bad faith, or notice, or knowledge on her part of any facts affecting the validity or honesty of the note as against Adams, but seeks to charge her with the consequences of the bad faith of the other defendants, by reason of the sole fact that she received the note with knowledge that Adams was surety of the other makers.
Thus the plea presents the same question that is presented by the evidence and charge of the court. We think the plea insufficient, regarding the decision of the case, above referred to, as controlling this.
The judgment of the county court is affirmed.