White v. Jordan

27 Me. 370 | Me. | 1847

The opinion of the Court was delivered June 30, 1848, by

Sheplev J.

The suit is upon a promissory note made by the defendant on July 21, 1836, for forty dollars, payable to John Stuart or bearer, in one year from date, with interest. The note continued to be the property of Stuart for a long time, after it became payable. The defendant filed in set-off a promissory note made by Stuart on Sept. J 9, 1834, for one hundred and fifty dollars, “ towards stumpage of lumber cut on township No. 1, Bingham purchase, as my bond may certify, dated July 11, 1834, signed by Thomas Wentworth,” payable to the defendant or bearer. The plaintiff contended, that this note had been fully paid; and also that the defendant’s right to recover upon it was barred by the statute of limitations.

To prove payment he introduced a receipt signed by the defendant and bearing date on March 19, 1837, stating, that he had received of Stuart, “ seventy-five dollars in full for a note dated some time in October, 1834, the same and signed by said Stuart for some stumpage in a trade between said Stuart and myself.” As the receipt did not describe the note with sufficient accuracy to identify it, the deposition of Stuart was introduced for that purpose. It stated the time, place and circumstances in relation to that payment. Upon this testimony the question arose whether that note had been paid in full, or only in part.

The Judge was requested to instruct the jury, “ that the receipt was evidence, upon which the jury might infer the note of Stuart to Jordan was paid.” It will be perceived, that this request was not made for instructions respecting the true construction or legal effect of the receipt. It might be explained, and its literal import might be controlled by the •other testimony, and its effect must be considered in connexion with that testimony. A party can have no right to select a portion of the evidence introduced and request instructions upon the effect that it should or might have upon the minds ■of jurors, when examined separately from the other evidence applicable to the same point. This has been often stated; • and the requested instruction was properly refused.

The jury were instructed on this point “ that the receipt of itself was no defence to the note beyond the amount paid, unless there was evidence to satisfy the jury of other consideration.” The rule of law is well established, that a payment .made in money of a part, does not operate to extinguish the whole debt, although it be received as a payment in full. There must be some consideration for a relinquishment of the portion not paid, or the agreement to receive a part as pay.ment in full, will be without consideration and void. The instructions authorized the jury to consider, whether any such consideration was proved. It is said, that “ the ruling given did not explain the law or state it satisfactorily.” If there were any omissions to do so, the counsel might have re•quested appropriate instructions. This Court cannot conclude, that there were any such omissions, when no evidence of it is presented in the bill of exceptions. The instructions on this point, which are the subject of complaint, were correct, •and the legal conclusion is, that all other necessary instructions were correctly given. No question, which is not. presented by the bill of exceptions, is open for consideration.

On the second point the counsel for the plaintiff, “ requested the Court to instruct the jury, that the statute of limitations of .1821, was applicable to the note filed in set-off.” This was refused, and the jury were instructed, that “ the Revised Statutes were to govern.” This would be correct, if Stuart made a new promise, when the payment was made by him on March 19, 1837. If he did not make a promise at that time, the defendant’s right to recover upon that note would have been barred by the act of 1821, before it was repealed; and in such case the rights of the parties should have been determined by the provisions of that act. Crehore v. Mason, 23 Maine R. 413. It became necessary to decide upon the effect of the payment made by Stuart in the month of March, 1837, under the circumstances exhibited by the testimony, for the purpose of determining, by which of those statutes the rights of the parties were to be decided. There is no proof, that Stuart made at that time any declarations amounting in law to a promise. The jury might have been fully authorized to find, that there was no other consideration for that payment than the duty to pay his debt; and that the defendant was not bound by the acknowledgment contained in his receipt, that it was received as payment in full. For when the question was distinctly put to Stuart, whether that money was paid in full for the note, the answer was, “ it was, I presume, the receipt says so, and he wrote the receipt himself.” He does not testify, that there was any express agreement made between them, that the amount paid, on account of the place of payment and absence of the note, should be received as payment in full; or that there was any conversation between them indicating any consideration other than the usual one, that a creditor desires to obtain payment of his debtor.

If that payment be regarded as made in the ordinary course of business between debtor and creditor, it would be evidence, from which the jury should infer a new promise. But such a payment does not authorize the Court to do it as a legal inference. Oakes v. Mitchell, 15 Maine R. 360; Pray v. Garcelon, 17 Maine R. 145; McLellan v. Albee, idem, 184; The Exeter Bank v. Sullivan, 6 N. H. Rep. 124; Sigourney v. Drury, 14 Pick. 387; Sands v. Gelston, 15 Johns. R. 511; Bell v. Morrison, 1 Peters, 351; Tanner v. Smart, 6 B. & C. 603. In the case of Linsell v. Bonsor, 2 Bing. N. C. 241, Tindal C. J. said, that “a distinct and unqualified acknowledgment would have the same effect as a promise, because from such an acknowledgment the law implies a promise to pay.” But that case arose under the provisions of the act of 9 Geo. 4, c. 14 ; and the grounds for such a legal inference are stated by Mr. Justice Gaselee, that “ the words of the late statute are c promise or acknowledgmentthat means an acknowledgment, from which the law would imply a promise to pay.

To authorize him to give unconditional and absolute instructions, that the rights of the parties were to be determined by the provisions of the Revised Statutes, the Judge, it would seem, must have concluded, that the law would infer a promise from the payment made by Stuart. The jury might have been instructed to inquire, whether that payment was made under such circumstances, that it amounted to an admission, that the debt was then due; that if they came to that conclusion, they should infer a promise made at that time to pay it, and that in such case the rights of the parties were to be determined not by the provisions of the aet of 182 L, but by those of the Revised Statutes; and that if they should not so find, their rights would be determined by the provisions of the statute of 1821. The Court appears to have erred by implying a promise as an inference of law, from a payment of part of the debt, instead of submitting the testimony to the jury with proper instructions to enable them to do it.

Exceptions sustained, and new trial granted.