Thе Paragon Oil Can Company brought suit upon an open account against Howell & Norton, a partnership, alleging in its declaration that Howell, one of the partners, “in furtherance of said partnership indebtedness,” hаd given to plaintiff a promissory note which had never been paid; that this note was taken from Howell before any dissolution of the. partnership; or notice thereof to' plaintiff, and was taken and accepted with the distinct understanding and agreement at the time, between plaintiff and the defendants, that it was not to be in any way а release of the partnership liability, “only so far as and until said note should be paid.” Norton, by his plea, deniеd that there was any such understanding as to the note, and alleged that the same was accepted in full settlement of the partnership indebtedness to the plaintiff. There was a verdict against Howell alone, and the plaintiff’s motion for a new trial having been granted, Norton excepted.
It appears from the evidence, that on the day the partnership was dissolved Howell mailed his individual promissory note to the Oil Can Company, and in а letter accompanying the same asked that it accept the note in settlement of its bill against the рartnership; promising in the letter that the note would be promptly met at or before its maturity. In reply, the Oil Can Company stated, in effect, that it would accept the note as a settlement of the account, if it was pаid before due or when it became due. Other cor
1. The general rule is, that “bank checks and promissory notes are not payment until themselves paid.” Code, §2867. Whether or not the receipt of a promissory note amounts to the pаyment of a pre-existing indebtedness depends upon the intention of the parties. “A bill, acceptance, or note of the debtor or a third person, is not an extinguishment of the original demand, unless there is an express аgreement to receive it as payment.” Cotton Gin Company v. Black, 71 Ga. 450, 456, citing Weaver v. Nixon & Wester, 69 Ga. 699. Of course if it affirmatively appears that in accepting а promissory note there was no intention of taking it as a payment of a pre-existing account, it cannоt be said that the account was paid. See, also, Pritchard v. Smith & Company, 77 Ga. 463. In Stone v. Chamberlin & Bancroft, 20 Ga. 262, it appeared that a note given by one of the partners in settlement of a debt due by the firm was executed after dissolution, which fact was known to the plaintiff, and that all of this was done without the knowledge or consent of the other partner. The court, while recognizing thе general rule as laid down in the present case, were of the opinion that under the circumstances there shown, the partner last referred to was exonerated. In Chamberlain & Bancroft v. Stone, 24 Ga. 310, it was again held that where the holders of a рromissory note executed by a partnership renewed it with one of the partners after a dissolution of thе partnership, and extended the day of payment without the knowledge of the
In the present case, the nоte was given on the day of the dissolution, and apparently with the knowledge and consent of Norton. In Mosely et al. v. Floyd et al., 31 Ga. 564, the faсts of which are somewhat complicated, it seems that the note in question was really accepted as a payment, the intention to thus accept it being manifested by a receipt in which the note was treated as cash. In Tyner v. Stoops,
2. Neithеr the retention of the note until after its maturity, nor discounting it or otherwise using it in bank, resulted in an extinguishment of the original aсcount, it appearing that after the note' was dishonored the Oil Can Company again took it up and had it in their possession before bringing the present action. A note will not be a payment or a discharge of the оriginal debt, though the holder discount it, if he afterwards’ has to' pay it. 2 Parsons on Notes & Bills, 155, 156. “If a note be taken by a creditor, who indorses the note and gets it discounted at bank for the benefit of the drawer, and afterwards has to takе it up again after protest, this, is not such a parting with the note as makes it an extinguishment of the prece
3. We tbink, under the undisputed facts of the present case, both of the defendants were liable to the plaintiff; and as the verdict discharged one of them, the plaintiff was entitled to another trial, notwithstanding the fact that a previous new trial had been granted to it.
Judgment affirmed.