Bonnell v. Chamberlin

Ellsworth, J.

One of the important questions made on this trial is, whether William A. Chamberlin was in partnership with C. C. Chamberlin and J.' L. Root, at the time of the sale of the goods in question by the plaintiffs. To establish the affirmative, and that credit was given to him as a partner, the plaintiffs offered to prove that at the time of the sale they sent a messenger to a certain mercantile agency in the city of New York to learn what was the credit of the said William, which fact was unknown to him. This evidence was objected to, but was received. We think it was improperly received. The fact was res inter alios acta. It tended to prove that the plaintiffs supposed they were selling and giving credit to the said William as one of the purchasers, but it had no proper tendency to prove that the sale was in fact made to him as one of the purchasers. It was not sufficiently certain and direct to lay the foundation of any presumption against a stranger. 1 Stark. Ev., § 23, p. 40, contains the true rule. The same principle was laid down in Beach v. Catlin, 4 Day, 293 , and in Jacobs v. Putnam, 4 Pick., 108 .

Another claim made is, that the court erred in charging the jury, that if in fact the goods were sold to the three defendants as partners, an agreement with the plaintiffs to take the note of two of the defendants in payment, at a time subsequent, and actually so taking it, would not discharge the other defendant, unless there was some further consider *492 ation for the agreement. We think the court erred in giving this instruction to the jury. An agreement with two of three partners, to take the note of the two in payment, and so taking it, as is here found, rests on a sufficient consideration, and is in law a good and sufficient payment. The more usual question in this class of cases' is one of fact for the jury, whether the new note is agreed to be received in payment, or is merely new security or security in a new form, in which case, if this was all, it would not be payment; but the contrary is agreed to be the fact here, and consequently no such question can arise. As to consideration, there is enough growing out of the transaction itself. The creditor receives the new note inpayment; his account is closed, and the satisfaction is as complete and perfect as if the note had been one of a third person. The creditor gets something of value in a clear and absolute note, and something he can make use of; the debtor often gains time, and always a settlement and an extinguishment of the account.

As evidence of an agreement that the new note is received in payment of the account, our courts have attached peculiar importance to a receipt which expresses that the note is given in full payment. Herein we have gone beyond the courts in some of the other states; but we have so held repeatedly, and no one doubts but that, according to our decisions, a receipt in full is a discharge, unless it is executed under circumstances of mistake, accident, or surprise, or is founded in fraud. Fuller v. Crittenden, 9 Conn., 401 . Tucker v. Baldwin, 13 id., 136. Hurd v. Blackman, 19 id., 177.

Another question has been discussed at the bar, viz.: whether if William A. Chamberlin sold out his stock of goods to C. C. Chamberlin and J. L. Root, before the purchase of the goods in question, with a fraudulent intent to avail himself of future purchases made by the new firm in New York, he would not still be liable. This question we have not had occasion very fully to examine, as we decide to grant a new trial on other grounds, but it is not very easy to see, if it be true that C. C. Chamberlin and J. L. Root were the real and true purchasers of the goods from *493 the plaintiffs, how the fraud spoken of would make William A. Chamberlin liable in this form of action, any more than if he had given to his debtors a fraudulent recommendation, that they might go and buy goods and turn them out to him so that he might get his debt paid. We advise a new trial.

In this opinion the other judges concurred.

New trial advised.