Snow v. Foster

79 Me. 558 | Me. | 1887

Danforth, J.

This is an action upon a negotiable promissory note payable to William B. Snow, administrator, and by him, as the case shows, indorsed and delivered to the plaintiff.

The defence is a discharge in insolvency which is admitted to have been duly obtained. To this it is replied that the note in suit was given in renewal of a prior note bearing date before the passage of the insolvent law, and is not, therefore, affected by the discharge. The note in suit comes within the provisions of the law; the prior one does not. Which is to prevail? It is evident that if the prior note was discharged by the later, the defence is made out.

It is now too well settled in this state, that taking a negotiable note in consideration of an existing debt is a presumptive payment of that debt, to require the citation of authorities. This presumption may be rebutted; for the parties may make such a contract in regard to it as they see tit.' In this case the facts agreed upon show nothing tending to rebut that presumption. There was no collateral security for the first note. That had only the personal liability of the defendant; the last note had the same. The existence of the insolvent law would not affect any security, whatever influence it might have upon the note. On the other hand, the facts tend strongly to confirm the presumption. When the new note was given the old one was delivered to the maker, which, unexplained, must be considered a cancellation of it. But farther, and if possible more conclusive than this, the payee has indorsed and delivered the last note to the plaintiff, thus treating it as a distinct and subsisting contract. The two cannot stand together as separate contracts. The parties have treated the first as discharged, and the last as the only one in force. The plaintiff certainly can have no claim for exemption from the insolvent law. He shows no connection with the prior debt. His rights began with the purchase of the note in suit, and he can only claim such rights as that gives him. His contract was made under the insolvent law and must be subject to its provisions.

Judgment for defendant.

Peters, C. J., Walton, Virgin, Emery and Foster, JJ., concurred.