5 Vt. 402 | Vt. | 1833
The opinion of the Conrt was pronounced by
The bill of exceptions in this case, shows, that Hull JYims and Thaddeus Colman, on the 7th September, 1820, gave their joint and several note, promising to pay Samuel Henry, or order, $2300 in five years from the first day of April then next, with interest annually; also that this note was endorsed by Henry to Oliver Smith, who paid Henry the full amount of the note in money.
Moreover, the bill of exceptions shows, that on the ISfch October, 3820, Thaddeus Colman gave his note to Samuel Henry to pay him $50 in six years from'date; and upon this note was written, “The condition of this obligation is such, that if Samuel Henry shall well and truly pay a note signed by Hull JVims and Thaddeus Colman, payable to Oliver Smith, of Hatfield, for the sum of .$2200, in five Years from the first of April next, with interest, dated Sep-* tember, 1820, then this obligation to be in full force. But if the said Hull or Thaddeus shall expend any time or moa* ey in consequence, then so much to be deducted there-* from.”
Samuel Henry has brought his action against Thaddeus Colman on this $50 note, and we are called upon to settle the rights of the parties. It is obvious, that by the condition annexed to the $50 note, Samuel Henry, if he paid the large note of $2200 to Oliver Smith, was entitled to collect the $50 note of Thaddeus Colman, except what should be deducted from said $50 note for time or money expended by said Hull or Thaddeus in consequence of their having signed the $2200 note.
If the $50 note was to be in force on Samuel Henry's paying the large note of $2200 to Oliver Smith, (and this seems to be the condition) then Henry, before he can collect the $50 note, must show that he has paid the $2200 note; for it is on such payment only, that the $50 note is “ to be of full force." And it is to be inferred from the con-r d.ition of the small note, that if Henry did not pay the large note, the small one was not to be in force. The de? position of Oliver Smith shows, that JYims and Colman paid the large note; therefore Henry can have no claim on the small note.
We consider this construction to be the meaning of the parties to the $50 note, which should be carried into effect.
Judgement of the County Court is affirmed.