5 Whart. 95 | Pa. | 1840
The opinion of the Court was delivered by
On the 24th of September, 1832, Charles S. Peaslee, John C. Sims, and William F. Burkhart made an assignment for the benefit of their creditors, to Mr. Perkins, the defendant, ,in trust to pay—
“ Class 1. All borrowed money loaned to the said firm of Peaslee, Sims &. Co., and for whieh neither the bond or note of the said firm is now held.
Class 2. All and every the sum and sums of money borrowed by the said firm from individuals or firms, for which either the bond or promissory note of the said parties of the first part have been given, and fully to indemnify and save harmless all and every individual and firm of and from all loss for or by reason of any promissory note, draft, or l?ill of exchange, drawn, endorsed, or accepted, or signed by him or them for the accommodation of the. parties of the first part” (the parties of the first part were Pe.aslee, Sims & Co.)
Class 3. The remaining debts and claims against Peaslee, Sims & Co.
“ The plaintiffs were perfectly aware of our situation. They and .yve thought it advisable for them to renew these notes, that our .difficulties might not be known, as we had a prospect of getting .through and maintaining our credit; and they agreed to renew these potes ip this way that it might not be known. Jn the mode adopted .there is nothing peculiar. It was an extension of credit. The notes were renewed .by taking to Hacker, Brown & Co., a new note for the amount we wished renewed ; we paid on a note falling due as much as we could; the new note and interest was for the balance .and was given to them, and they gave us a check for the amount of .such new note. The check was taken to the bank where Hacker, Brown & Co. kept their money, and we drew the amount and with that and what we could p.ay, lifted the old note. The money was taken Jto t¡he .banjk where the plaintiffs kept their account, and not where we kept our account; we invariably took the money itself to the bank where the notes were. The new notes are for the balance of the old notes ; the present notes are the lowest amount of potes; the day after this took place, the plaintiffs stood better than they stood before, in this, that we owed them so much less as the difference between the respective amounts of the old and new notes. The money was passed to the credit of the plaintiffs; the new note had nothing to do with the bank transaction. I do not know that the bank knew of the notes being renewed. The course is that the piopey is passed to the'credit of the note in bank. They were not out of pohket longer than to go from one bank to the other. The arrangement between ús was that the notes should be renewed. There wás n.o arrangement that they should lend us money.” Again, the witness says ; “ There were some of these notes that I believe were, settled at the plaintiffs-’ counting-hoüse;” and as.to these, it seems conceded, the plaintiffs have no claim to come in as for ptoney lent. The allegation is, that in the mode which was adopted
Generally it is, as between creditor and debtor, immaterial whether a note was given for money lent, or for goods sold. But in case of assignment, it has become usual to direct payment of the fund, so as to prefer debts contracted in one mode from those contracted in another mode: and in the case before us three different grades are marked.
We had some learning and notice of the terms in old declarations and pleas; and not a few cases, in some of which the new note was an extinguishment of the old note ; and in some it was held not to extinguish the present debt or note. The result of all the cases in our own Court, and perhaps in all, is, that it depends on the intention of the parties; and if that intention can be ascertained, it decides whether it is or is not the extinction of the old, or creating a new debt. Such is the decision in Slaymaker v. Gundaker's Ex'rs, (10 Serg. & Rawle, 82;) and in 15 Serg. & Rawle, 183, the very point came up, and though it is stated by the late chief justice, that “ a new note, without any new consideration, given by the same parties, will generally be considered as the same debt, yet it is error to decide it as a point of law; that whether it is a continuance of the old, or creating a new, must be left to the jury.” In this case, the partners, Peaslee and Burkhart, were examined, one by the plaintiffs, and one by the defendant; and there is no discrepance. We have thus positive proof that the offer of Hacker, Brown & Co. was to extend the time of payment on the notes for goods sold, that there was never at any time any mention of a loan on the one side, or borrowing on theother, so far as respected these notes, or the renewal of them. That the understanding was, that the money or checks were given to Peaslee, Sims & Co., as a mode of extending the credit; and it was part of the understanding, that this was not to be known.
Hacker, Brown & Co. understood perfectly the difference between a deht for goods sold, and one for money lent. About the time of
Much was said on the effect of giving up the old note when part
Judgment for the defendants