185 F. 471 | 9th Cir. | 1911
(after stating the facts as above).
The writ of error presents the question of law whether, upon the facts proven under the issues, it is shown that the indebtedness of the plaintiff in error to the Construction Company had been paid or satisfied. There is no evidence of an agreement between the parties that the notes were received as payment of the debt. In the absence of such an agreement, the common-law rule prevails in nearly all of the states and is adopted in the federal courts that the original demand is not paid or extinguished by the note. Peter v. Beverly, 10 Pet. 532, 9 L.Ed. 522; U. S. Bank v. Daniel, 12 Pet. 32, 9 L.Ed. 989; Lyman v. Bank of the United States, 12 How. 225, 13 L.Ed. 965; Downey v. Hicks, 14 How. 240, 14 L.Ed. 404; Atlas S. S. Co. v. Columbian Land Co., 102 F. 358, 42 C.C.A. 398. Nor is there any evidence other than the recital in said resolution of the trustees that the notes which were produced in evidence were ever delivered to the Construction Company. They purport to have been executed at Montreal; but it is evident that the maker could not have been at Montreal, Canada, at the time of their execution. The bill of exceptions describes Frost as the president of the Railway Company, and managing agent of the Construction Company on March 25, 1909, and we may assume that he bore such relations to both corporations at the time when the notes were marked canceled. But there is no evidence that he was authorized to act for or represent either corporation in compromising the debt of the plaintiff in error, or in receiving accord and satisfaction thereof. Evidently the books of the Construction Company contain no entry that notes had been given for the indebtedness of the plaintiff in er
The plaintiff in error cites authorities to the proposition that the appointment of a receiver does not in itself convey title to personalty or choses in action located outside of the court’s jurisdiction, and that therefore the obligation of the plaintiff in error could lawfully be paid to the Construction Company at Seattle. Those authorities are not pertinent' here, for the doctrine to which they are applicable is not involved. There is no question here of the power of a corporation to dispose of its property located outside of the district in which the receiver was appointed or of the right of' a creditor to subject such assets to the satisfaction of his claim. By the order appointing the receiver, he was given the right of possession of all the assets of the Construction Company and the Railway Company, including the book accounts, notes, and debts due those corporations. The debt on which the present action was brought was a debt incurred in Alaska. There is nothing to show that notes had been
The plaintiff in error contends that the court below erred in finding the settlement void on the ground of fraud and collusion between the parties who made it, for the reason that no such ground for impeaching it had been pleaded by the ■ defendant in error. But there was no opportunity to plead such fraud and collusion, nor was there necessity therefor. The action was brought upon the indebtedness as it appeared upon the books of the Construction Company. Th.e plaintiff in error answered alleging, not that there had been accord and satisfaction, but that notes had been given for the debt, and that the notes had been paid and canceled. It was proper to show, as the defendant in error did from the minutes of the board of trustees, not only that the execution and cancellation of the notes were fraudulent and collusive, but that the whole transaction was prohibited.
The judgment is affirmed.
