20 N.H. 354 | Superior Court of New Hampshire | 1850
It is the general practice of courts in the trial of causes to call the attention of the jury to some extent to the evidence which has been introduced, and to instruct them as to the legal effect and bearing of it upon the issue to be tried, where such instruction appears to be required. "When the court has omitted to do this in their charge, the omission may be remedied by a motion in behalf of either party, for instructions with respect to the particular articles of evidence omitted. But from this salutary practice a party cannot derive a claim to suppose or hypothecate a ease not supported by the evidence, and to require the ruling of the court upon the legal effect of such supposed state of facts.
In this case, the court were requested to instruct the jury as to the hypothesis that the plaintiffs credited upon their bills the note of Hutchins as cash; a fact which was wholly disproved by the testimony of Mair, who swore that he himself entered the memorandum of the" note of Hutchins at the foot of the bill, without authority, either direct or implied, to credit the amount to the defend
This appears to answer the exceptions of the defendant, so far as they relate to that part of his motion. They are further answered by the general effect of the instructions which were in fact given. The only question that was before the jury upon this part of the evidence, was whether the note of Hutchins was received by the plaintiffs of the defendant as cash ; and that question the jury were directed to consider.
The court instructed the jury “that if the note of Hutchins was not received as payment, the plaintiffs would not be charged with it as a payment.” This was in strict conformity with the cases in this State and elsewhere; Jaffrey v. Cornish, 10 N. H. 505 ; Wright v. Crockery Ware Co., 1 N. H. 281; where it is said that “ if a creditor receive the note of his debtor, or of a third person, indorsed by the debtor, either for a precedent debt or a debt arising at the time, it is not presumed it has been received in satisfaction.” Chitty on Bills 109; Holmes v. D’Camp, 2 Johns. 33.
To the same effect is Owenson v. Morse, 7 T. R. 64; Bailey on Bills 248; and there is nothing in this case which tends to bring it within any of the exceptions or qualifications of the general and perfectly established rule on the subject. That the defendant was required to indorse the note shows that the plaintiffs did not intend to take risk of its being paid, and their discounting it at the bank was a legitimate use of the security, in its terms negotiable, and of a kind usually taken in trade, for the express purpose of being negotiated.
The second position of the defendant was, that if the note was taken by the plaintiffs with the understanding that it was to be payment of the plaintiff’s account, when paid, this would imply, as matter of law, an agreement to wait on the account till the note became due.
That evidence renders the relation of the several parties to the note extremely plain. The plaintiffs held it in trust for the defendant, as collateral security is usually held. When the time arrived at which they could call for the principal debt, and chose to do so, they were not obliged, upon any principle of law, to' wait for the maturity of the collateral security, any more than if it had matured they would have been required to exhaust it before falling upon the principal.
The instructions of the court were upon this point full, and went to the whole extent of the evidence.
We are, therefore, of the opinion that the exceptions of the defendant cannot prevail, and that there must be
Judgment on the verdict.
