Cushman v. Loker

A, holding B’s note, delivers it to C to collect; C, for a valuable consideration, sells it to D, who receives from B the money due; C afterwards gives A his own note for the amount A’s acceptance of C’s note is a confirmation of the transaction. In an action by A against D for the money received by him of B, C is a competent witness.

This was an action of assumpsit for money had and received, which was tried before Sewatt, J., at an adjourned session in December last, when a verdict was rendered for the defendant. It appeared in evidence, on the part of the plaintiff, that he' had a note against one Willington, on which there was due to the plaintiff, from W., the sum of 89 dollars — cents; that the plaintiff delivered said note to one Clement Smith, to collect the sum due thereon for his, the plaintiff’s, use. The note, not appearing to be endorsed by the plaintiff, came into the hands of Loker, the defendant, who presented the same to W., received the amount due thereon, and delivered it up to W., to be cancelled. The defendant then offered Smith, as a witness, to prove that the note was sold by him to Loker for a valuable consideration, and that he, Smith, afterwards gave his note to Cushman in satisfaction therefor. The plaintiff objected to Smith’s being admitted as a witness, on the ground that he was interested to procure Loker’s discharge from this demand. The objection being overruled by the Court, Smith testified that he sold the note to Loker, and received payment in cattle; [ * 107 ] * that he told Loker it was put into his hands to collect, but did not tell him for whom he was to collect it; that immediately after so selling the note, and oefore he saw Cushman, he became insolvent, and had remained so ever since. After Cushman had become acquainted with these facts, he received from Smith his note for the amount of W.’s note, and for the trouble Cushman had had in endeavoring to obtain satisfaction from W. This last note had never been paid, nor any part thereof. The judge directed the jury that, if they believed Smith’s testimony, the giving of said note by him to Cushman, as aforesaid, did, in his opinion, discharge Loker from the liability he was under by law to refund to the plaintiff the money received by him of W., as aforesaid. To this direction of the judge, and the admission of Smith as a witness, the plaintiff filed his exceptions. And now Leavitt, in support of the exceptions, contended, first, that Smith was not a competent witness, because, if the plaintiff succeeds in this suit, he (Smith) will be liable to the action of Loker for the value paid by him to Smith for the note, and perhaps for other special damages. The vendor of a personal chattel with warranty is not a competent witness to support the right of the vendee. (1) There was an implied warranty, on the part of Smith, that he had a right to sell the note to Loker; for the law always implies that the seller of a personal chattel warrants that the commodity he sells is his own, or that he has a right to sell it; and this implied warranty in all cases extends to the title of the thing sold, though not always to the quality and soundness of it. (2) Secondly. The direction of the judge as to the effect of the note given by Smith to Cushman was wrong. Where a simple contract debt is due, the giving a note therefor by the debtor himself is no extinguishment or alteration of the debt till payment. (3) In such case, the giving of a bond by a third person is no extinguishment of the debt. (4) And if the creditor, in such case, receive the note of a third person in * payment, yet if the note turns out to be of no value, [ * 108 ] it is no payment, and he may resort to his original demand. (5) From these authorities it is inferred that the mere giving the note, by Smith, did not exonerate Loker from his responsibility. Loker can have'no advantage of this, until the note is paid, it is, at most, nothing more than an accord, which, without satisfaction, is no bar.