Raymond v. Merchant

3 Cow. 147 | N.Y. Sup. Ct. | 1824

Lead Opinion

Curia,

per Savage, Ch. J.

Under the pleadings in this

case> afid the previous decisions of this Court, (Mather v.Bush, 16 John. 233, Matter of Wendell, 19 John. 153,) the question raised is, whether the note executed in Vermont be an extinguishment of the previous contract, or indebtedness on which the note was predicated. The principle adopted by this Court, in Homles v. D'Camp, (1 John. Rep. 36-7,) is, that a negotiable note is not absolutely an extinguishment of an antecedent, simple contract debt; but that the plaintiff may recover upon the original consideration, provided he shews the note to be lost, or produces and cancels it at the trial. Had the plaintiff declared on the original consideration, a plea that a note had been given for it, would have been bad on demurrer. The giving the note must be taken advantage of on the trial.

I think, therefore, that as the contract was made in the state of New-York, and is not extinguished by the note given in Vermont, the discharge is a good defence. The defendant must have judgment.

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Dissenting Opinion

Sutherland, J.

(dissenting.) The demurrer in this case, appears to me to be well taken. The contract between the parties is the note on which the suit is brought. All previous contracts or agreements in relation to the subject matter of the note were merged in it. The plaintiff could not have recovered upon the original consideration of this note, as long as the note was in being. He would have been obliged cither to have shown that it was lost, or te have produced and cancelled it at the trial. (Holmes v. D'Camp, 1 John. Rep. 34. Angel v. Felton, 8 id. 115.) The final agreement between the parties, is the contract;, and the law of the place where that agreement is made, is to govern its construction, unless it appear upon its face to have been made with reference to. the laws of some other place, and with a view of being executed there. It may be that the note was not given in New-York, for the very purpose of avoiding the operation of our insolvent laws, and that by the express agreement of the parties.

The case of Wyman v. Mitchell, cited by the counsel for the defendant, is very distinguishable from this. That was an action of debt upon a judgment obtained in this state. The defendant pleaded his discharge under one of our insolvent acts. The plaintiff replied, stating the contract upon which the judgment was obtained, to have been made in Massachusetts before the passing of the act under which the defendant was discharged. To this the defendant demurred¡ and we overruled the demurrer on the ground that the judgment upon which the suit was brought, was not a contract between the parties, but only evidence of a preexisting contract; and that it was proper to show when and where ¿hat contract was made. A judgment is not a voluntary agreement between the parties. It can never, therefore, be said, that a judgment is a contract entered into with reference to the laws of the place where it is obtained, and that those laws are to be presumed to have been within the contemplation and intent of the parties. We, therefore, permitted the plaintiff to go back until he came to an agreement or contract, and no farther. We held, expressly, that the consideration of such agreement or contract was not to be inquired into, with a view of shewing that it arose at a different time or place from the contract itself.

I am accordingly of opinion, that the plaintiff should Stave judgment.

Judgment for the defendant.