Ellis v. Allen, 48 Vt. 545

Ellis v. Allen

48 Vt. 545 | Vt. | 1876

The opinion of the court was delivered by

Ross, J..

The defendant’s third plea avers that he gave the note in suit, with other notes there specified, to the plaintiff for the purchase of some property, and that a part of said notes were secured by mortgage on said property; that subsequently he sold the same property to D. J. Boynton, whereupon it was agreed between the plaintiff, defendant, and Boynton, that Boynton should assume and pay all of said notes to the plaintiff, and that the plaintiff released the defendant from such of said notes as were secured by mortgage. The note in suit was not secured by mortgage. This agreement between the three made it the duty of Boynton to pay the note in suit, and carried knowledge to the plaintiff that the defendant had paid the note in suit to Boynton, so that thereafter, as between the defendant and Boynton, Boynton was the principal upon the note and the defendant a surety. The plea further avers, that afterwards, the mill standing on the prem*549ises on which that part of the notes from the payment of which the plaintiff had released the "defendant were secured, was washed away, and that thereby the security for the payment of those notes became doubtful, whereupon the plaintiff agreed with said Boynton, in consideration that Boynton would deliver a certain amount of lumber to other parties named, and rebuild the mill, that the plaintiff would pay the note in suit,' then in the hands of a Mr. Randall, and not call upon .the said Boynton for the same,<? and that said Boynton performed his part of said agreement. This is tantamount to an averment that Boynton paid and satisfied the note to the plaintiff, or did what the plaintiff agreed to receive as satisfaction for his paying the note to the then holder, Randall. When Boynton had thus paid and satisfied the plaintiff for paying and taking up the note from Randall, his payment of the note to Randall was a satisfaction of the note, and not a purchase thereof. The plaintiff thereafter could not set up the note as a debt against the defendant or Boynton. By the performance by Boynton of the agreement between him and the plaintiff, the note became the, plaintiff’s note to pay ; and when he paid it to Randall, he paid his own note, and created a debt against no one. By his agreement with Boynton, and the performance thereof by Boynton, the plaintiff discharged Boynton from the payment of the note ; and as he knew that as between Boynton and the defendant, Boynton was principal and the defendant surety, he thereby also discharged the defendant from the payment of the note. A discharge by the creditor of the known principal ori his debt, discharges also the known surety on the same debt. This we think is the legal effect of the facts set forth in the defendant’s third plea, and that they operate as a bar to the collection by the plaintiff of the note in suit.

We do not think that the plaintiff’s replication sets forth any facts that countervail the effect of the plea. It admits the agreement, and its performance by Boynton, by which ,tho plaintiff was bound to pay the note in suit, and not call upon Boynton for it, but avers that some four years after, in some transactions with Boynton that grew out of the payment of one of the notes secured by mortgage, and from the payment of which the plaintiff released *550the defendant, Boynton claimed and insisted that he should allow him for part of the lumber which h’e, Boynton, had delivered to third parties in fulfillment of his agreement concerning the payment of the note in suit, and that he yielded to Boynton’s claim. But he states no facts that show that he was under any legal obligation to allow the claim made by Boynton, or that in any way connect the defendánt with such allowance. So far as the defendant was concerned, the transaction set forth in the replication might as well have never transpired. It did not and cohld not operate to revive the note in suit which had been, on the facts stated in the plea, once paid and satisfied, both as against Boyn-ton and the defendant.

Judgment affirmed.