Jones v. Rider
60 N.H. 452
N.H.
1881
Check Treatment

The note in suit is dated in Boston, and is presumed to be payable where dated (2 Par. Cont. 585, Tillotson v. Tillotson, 34 Conn. 335, and Chase v. Dow, 47 N.H. 405), and the contract is governed by the laws of Massachusetts. The referee has not found as a fact that it is unlawful in Massachusetts to stipulate for interest at the rate of ten per cent. per annum. The unlawfulness *Page 456 cannot be presumed. The defendants having stipulated to pay interest at the rate of ten per cent., interest must be computed accordingly. Orcutt v. Hough, 54 N.H. 472; Lawrence v. Bassett, 5 Allen 140; 2 Par. Cont. 583.

But if this be held a New Hampshire contract, the parties, being in different states, may contract for a rate of interest lawful in either state, unless it is made to appear that the purpose is to evade the usury laws of this state. No such design has been found by the referee, and is not to be inferred from the facts reported. Townsend v. Riley, 46 N.H. 300,312; 3 Par. Cont. 114.

A note is not payment of a preexisting debt, unless expressly so agreed. Ladd v. Wiggin, 35 N.H. 421; Clark v. Draper, 19 N.H. 419; Jaffrey v. Cornish, 10 N.H. 505; Wright v. Company, 1 N.H. 281; Elliot v. Sleeper,2 N.H. 525. The note of May 20, 1870, was not a payment of the three notes dated in 1867 and 1868; nor was the note in suit a payment of the note of 1870, it not appearing that there was an agreement to that effect. The defendants' promise to pay the excess above six per cent. upon the four prior notes cannot be enforced. Interest should be computed on the notes of 1867 and 1868, at six per cent., to May 20, 1870, and the sum found due be substituted for the principal of the note of that date, upon which interest should be computed, at the rate of six per cent., to February 20, 1874, and the amount found due be substituted for the principal of the note in suit, upon which interest should be computed at the rate of ten per cent. per annum.

Case discharged.

CLARK, J., did not sit: the others concurred.