26 Me. 475 | Me. | 1847
The opinion of the Court was drawn up by
On August 22, 1840, the plaintiffs, residing in Boston, held the note of the defendants, indorsed by one Joshua Lane, for the sum of $202, payable at the Suffolk Bank in Boston, which had long been overdue; on that day a note was received by one of the plaintiffs, in the following terms, viz : — “ Bangor, Me. Aug. 22, 1840. Thirty days after date, value received I promise to pay to the order of D. Moss-man & Co. 53, and dollars,” signed by one of the de
The last note, though for a sum less than that, for which the defendants were previously holden, was against another party ; and the contract modifying the time of payment and the amount to be paid, upon the performance of a condition, was upon sufficient consideration, and binding according to its import. The agreement of the plaintiff, that if the defendants should pay a sum of money less than that then due, in thirty days, he should be discharged from further liability, and nothing further was contained in the contract, it could not be enforced against the plaintiffs, there being no consideration therefor. It was necessary, therefore, that there should be some promise or contract from the other party, to render the plaintiff’s conditional promise binding. The purpose of the maker of the new note was to obtain the other at a discount, and his own conditional promise alone, created no legal obligation in the plaintiffs, inasmuch as they then had the absolute
It cannot be, and is not contended, that the agreement entered into on Aug. 22, 1840, of itself discharged the defendants from their previous indebtedness. The former note was outstanding and the maker of the new note was still liable on his original promise, the obligation of which would cease only by the payment of the new note, or by some act of the plaintiffs, which would substitute it for their former claim. To make out the defence, it must be shown, that the condition in the agreement of the 22d Aug. 1840, was performed, or that its performance was prevented by the wrong of the plaintiffs, or that they have adopted the new note in discharge of the old note. It is not contended that John Lane paid his note on the 22d of Aug. 1840, but it is insisted, that the facts, that it was' carried out of the State, and that one of the firm, who indorsed it would have paid it at maturity, if he had been notified of its dishonor by the maker, were equivalent to a tender on the day of payment.
“ All debts between the original parties are payable everywhere unless some special provision to the contrary be made; and therefore the rule is, that debts have no situs but accompany the creditor everywhere.” “ A negotiable note made payable generally, without any specification of place,, is a contract to pay at any place, where it is negotiated, so as to be deemed a contract of that place and governed by its laws.” It creates a debt payable any where by the very nature of the contract, and it is a- promise to whomsoever shall be the holder. Story’s Con. Laws, § 317; Braynard v. Marshall, 8 Pick. 194.
The firm whose name is upon the note of 22d of August, 1840, cannot be regarded as original promisors upon it, but are indorsers and only conditionally liable. If the plaintiffs had wished to avail themselves of the new contract, they could, have done so against all the parties, whether maker or
If the plaintiffs had actually transferred the note last received, it might have been an adoption thereof, and a discharge of the maker’s former indebtedness; but there is no evidence of such transfer; the only proof relied upon, on this point, is the refusal of one of the plaintiffs to receive the money tendered in January, 1845, with the declaration that he had no such note; this declaration might have been evidence of various intentions of the one who made it, but could not have
It is contended that negotiable security, having been taken by the plaintiffs, which was to be satisfaction of the debt, if paid, imposed upon the plaintiffs the duty of taking steps to hold the indorsers, before they could resort to an action upon the original claim ; and that this was necessary also to prevent circuity of action. If the plaintiffs had received as collateral security, a note which was valuable to the other party, it would have been incumbent on them, to take all the measures necessary to preyent a discharge of the parties, who could be liable to the one, from whom they received it. But this is not required, when the defendants could in no manner be prejudiced by the omission. We have seen that a demand upon the maker, and notice to the indorsers of the note of Aug. 22, 1840, could not have benefited the maker in any (went, and the law requires no useless ceremony. Neither was it necessary for the plaintiffs to return the new note, before the action upon the former was commenced ; its retention by them gave them no advantage, nor was it injurious to the maker of it.. It was filed in Court, after a tender to him, which prevents any exposure to risk, that he may be called upon by a stranger to this suit, for payment. Thurston v. Blanchard, 22 Pick. 18; Ayers v. Hewett, 19 Maine R. 281.
No evidence was adduced, showing any neglect of duty in the plaintiffs, or any act of theirs injurious to the defendants, which could create a liability ; and there can be no circuity of action, when one party only is exposed to a suit.
Default to stand.