Frost v. Martin

29 N.H. 306 | Superior Court of New Hampshire | 1854

Gilchrist, C. J.

Staples, Pray, and Morse, made a note for $455, payable to Lock, Smiley, and Shapleigh, in ninety days. Lock, having the note, sold it to the defendant, after it was due, receiving the principal. Lock and Smiley then indorsed it. Shapleigh, not knowing of - this, received $200 of Staples on the note. Afterwards, the defendant sold the note to the plaintiff, and received payment therefor. When the note was paid to the plaintiff, he was obliged to allow the $200 paid to Shapleigh, and this suit is brought to recover that sum of the defendant.

It was admitted that the $200 was properly allowed by the plaintiff as a payment which he could not resist. The question made was, whether the defendant was legally liable for that sum to the plaintiff.

It appears from the case that the plaintiff was told, both by the defendant and Shapleigh, that $200 had been paid on the note by Staples, and which Shapleigh offered to return, on learning that the defendant had bought the note ; but Staples said he might keep it on other claims he owed Shapleigh. The plaintiff then bought the note, saying he did not care for the receipt, as it was given after the sale of the note.

Morse claimed to have the $200 allowed on the note, saying that he received the receipt the day after it was given.

The court declined to instruct the jury that if they believed the payment was not in law a payment of the note, and the sale to the plaintiff was made with this belief, &c., he might recover; and this instruction was correct. The jury are not to say whether this was in law a payment.

The court were right in instructing the jury that if the plaintiff, knowing all the facts, bought the note at his own risk, he could not recover.

The court were also right in saying that it was not material that the plaintiff should know the particular terms of the receipt, if he knew it was for that sum received on the note.

The conversation between the defendant and Morse does not' seem material to the rights of these parties. It is merely that Morse said the $200 ought to be allowed on'the note.

The omission by the court to mention the manner in which the $200 was obtained, is no ground of exception. How far the court will go in stating the facts, is matter of discretion; and if it were not, it was too late after verdict to except, for a matter which might have been set right at the time, if the counsel had suggested it.

Judgment on the verdict