Majority
p. 409Arnold against Camp.
Headnote
Where a promissory noté as given by a partnership, ana the payee -after-wards takes the' individual noté of one of the partners for the amount, an<T give's up the1 partnership note, it is a payment of tiispartnership note.And if . tlier* payee after-wards gets back' the partnership note from the iddividual partner, on redelivering him hisnoté, and brings an action upon the partnership Dote, the other partner maya-, vail himself of' these circumstances as a bar'* to the actibn.
THIS was an action- on a promissory mote-, payable to the plaintiff, or bearer, on demand, for 464 dollars and 69 cents,dated the 10th of February,. 1813, and executed by Camp, and one Downing, his partner, against whom process had been issued jointly with Camp, but who was not taken. The cause-was tried before- Mr. Justice Spencer, at the Oneida circuit, in- June-, 1815.
The- note in question had been given up by the- plaintiff to Downing, upon the latter giving his own note- for the amount; but Downing afterwards took back.his own note, and returned the partnership note to the plaintiff, on the plaintiff’s telling him, that if he did not do so, he should work for him no longer.. The partnership between Camp and Downing was dissolved in June, 1813, and the plaintiff had notice of the • dissolution, Gamp had given Downing, property for the purpose of taking, up this note.
A verdict was found for the plaintiff, subject to the • opinion of the court.
p. 4101. That th~re. tv~ no .consideraçioi~ for th~ exchange of the partnership note. for the not&of.on.e of the parties~ only.[1] 2~ The fact of exchaoging t1~e partnership note for th~ not~ of the thclividual partner, was not, of itself~ a paynlent of the partnership note.[2] 3. The tin~e for the payfrient of ~the partnership note, which was given for .a piecedent debt, ~having elapsed, and . the note not having been paid, . tli~ plaintiff is entitled to rc.c~er under the ~coixnts for work and labour.[3] that tiTe part~ nership note having been taken up i~y Downing, and his ow.~ note accepted in its stead, the partnership 1~ote wa~ thereby satisfied and extinguished. They did not dispute ~1ny of the au~ thorities cited on the other side, but said they were cases of notes given at The time of thecont~act, and were ~ot applicable to the Frese~t case; that where a note is given fora precedent debt, and it is expressly agreed to b~ rè~eived as payment, it shall be payment.[4] The gIving up the partnership note was the highest evidence of an agreement to ~ccept the note of Do~oning as payment. It was either taken in payment, or as collateral seburity. It could ~ot be t~e latter, i~or it& correlative, the partnersWp'note, was `gone. The case of Newmarck and another v. Clay and others,[5] in the K, B., is in point, that. the delivering up. the partnership note, and ±eceiving the other,, is such a paym.erit.of the former~ that no action’.can be maintained on itand in. this case, also,:rt-is an answer to the third point made by th*e plaintiff’s counsel.,
C. M. Lee, for the plaintiff; contended,
Storrs, and N. Williams, contra, contended,
delivered the opinion of the court. ' The . question is, whether, under the circumstances of this case, Camp is not discharged from all responsibility upon this. note. There.is nothing in the case showing that Downing is insolvent, or" unable to pay the note he gá.ve in" his individual capacity.. As Downing had received property to’ discharge the -note, the rede-, ¡¡very of it to the plaintiff was unjust, as it respected Camp-, and he is justified in availing himself of all legal measures.' td" exonerate himself from the payment. ' The .circumstances op-. pear to fully warrant the -conclusion, that the individual note off
p. 411
Downing was intended to be given to, and was actually received by, the plaintiff, in satisfaction of the partnership note. This was delivered up for the purpose, as must necessarily be inferred, of being destroyed. This is a much stronger case than that of Shechy v. Mandeville. ( 6 Cranch, 264 .) It is there held, that, although, as a general principle, a promissory note will not of itself discharge the original cause of action, yet if, by agreement, the note is received as. payment, it satisfies the original contract, and the party receiving it must take his remedy on it. That case also shows that the doctrine of nudum pactum has no application to cases like the present; there also, as in this case, it was the note of one of the; firm that was held to discharge the. partnership. The same doctrine is maintained in Newmarck v. Clay, (14 East, 239.) and in Toby v. Webster, ( 5 Johns. Rep. 72 .) ■ This court considered the acceptance of a note as an extinguishment of a pre-existing debt, if agreed to be received as payment; and Whetherby v. Mann, ( 11 Johns. Rep. 518 .) is' a still stronger case. It is there held, that when a negotiable note has been received in satisfaction of a judgment, it is an extinguishment of the judgment debt. If the facts, then, in the case before us, will warrant the conclusion, that when the individual note of Downing was taken, and the partnership note delivered up, it was intended and agreed to be considered as payment of the note in question, there can be no doubt but that, in judgment of law, it will operate as a satisfaction of the partnership note ; and that the facts, not only fairly, but necessarily, lead to such a conclusion, will, in my opinion, admit of no doubt. The defendant i,s accordingly entitled to judgment.
Judgment for the %fendant.