21 Wend. 450 | N.Y. Sup. Ct. | 1839
By the Court,
Williams’ note, endorsed by M’Kinney, was received as payment. This is evident, from its being credited on the books, with the small sum of money paid at the same time, and the balance struck by the book. Prima facie, here was an accord and satisfaction. New York State Bank v. Fletcher, 5 Wendell, 85. Booth v. Smith, 3 id. 66. The reason why, in Smith v.
The case is different from that where a party gives his own note for his own debt, which is receipted as in full. There, on default of payment, the creditor has his election to go back to the original cause of action, on surrendering the note to be cancelled. Toby v. Barber, 5 Johns. R. 68. Schermerhorn v. Loines, 7 id. 311. Putnam v. Lewis, 8 id. 389. Burdick v. Green, 15 id. 247. Porter v. Talcott, 1 Cowen, 359. Muldon v. Whitlock, 1 id. 290. Raymond v. Merchant, 3 id. 137. Holmes v. D'Camp, 1 Johns. R. 34. Hughes v. Wheeler, 8 Cowen, 77. The note, in such case, is not even prima facie satisfaction. But it is otherwise of a note against a third person, transferred by the debtor, or a note procured from a third person as surety, and accepted as satisfaction. This is apparent from the two cases already referred to in 3 and 5 Wendell. Kearslake v. Morgan, 5 T. R. 513, is a strong case to the same point. The following cases also go to support the same view: Rew v. Barber, 3 Cowen, 272, 280 ; Whitbeck v. Van Ness, 11 Johns. R. 409; Everett v. Collins, 2 Campb. 515; Camidge v. Allenby, 6 Barn. & Cress. 373; Sutherland J. in Hughes v. Wheeler, 8 Cowen, 79, 80; Wiseman v. Lyman, 7 Mass. R. 286, 290. I admit there is some confusion in the two classes of cases; especially in the reasoning by which some of them are sustained. The result of direct adjudication, however, is to treat the note of the debtor or his agent, as no farther affecting the original debt, than to fix the term of payment; and whether given simultaneously with the original contract, or afterwards; whether agreed to be taken as a satisfaction or not, it may be disregarded, and on cancellation, the original consideration be resorted to, if the note be not paid according to its terms. Bill v. Porter, 9 Conn. R. 23, 30, 31. In both cases, however, whether at the time or after the original debt was created, if security additional to the
Above all, the evidence is quite too strong for the presiding judge to say, as he did virtually in this case, that there was not evidence even to go to the jury. Johnson v. Weed, 9 Johns. R. 310.
But a bond and warrant were taken for the precise debt, together with another debt, from one of the original debtors. These were either for M’Kinney’s new liability as endorser, which would be farther evidence that Williams’ note was intended as payment; or it was for the original debt; and then the bond itself being a security of a higher nature, extinguished that debt. Tom v. Goodrich, T Johns. R. 213. Clement v. Brush, 3 Johns. Cas. 181.
The reason why, in Day v. Leal, 14 Johns. R. 404, the bond was not allowed so to operate, was, because the parties agreed that it should stand as collateral security only at least this intent was supposed plainly to be collectable
Judgment for the defendants.