[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 633 The agreement of the defendant to see that the plaintiff's note was renewed from time to time till Birdsall should be able to meet it, carried with it an implication, not only that the plaintiff's note for renewal should be furnished in season to be substituted for the previous note, in order to save it, with the defendant's indorsement, from dishonor, but an implication that, in the event of Birdsall's ability to meet, or, in other words, pay the note, the obligation of the defendant to procure a renewal should cease. It is quite clear that after the dishonor of the first note, the defendant was not bound to see to it that a second was discounted or substituted for it; when the second note became due it was paid by the defendant; he, therefore, as between him and the plaintiff, had the right to the avails of the note given as its substitute (the second being canceled), to pay it to whomsoever he pleased, or to procure it to be discounted by a bank or his creditor. Transferring it to a creditor in payment of a debt was the equivalent, and nothing more or less than procuring it to be discounted by the creditor to whom it was transferred, and the most the defendant was bound to do in the event of Birdsall's being unable to pay it, was, if a new note was seasonably furnished, to see to it that the note discounted by his creditor was renewed, or that he should himself discount the note offered as its substitute; no *Page 635 such note was seasonably presented, and hence the defendant's obligation to procure it to be discounted, or discount it himself, was at an end. But upon the other ground, the action was well defended; Birdsall was able to pay the note, at its maturity, upon which the plaintiff was sued; the statement of the plaintiff that Birdsall was not worth a dollar, was made without knowledge sufficient to justify it, as he admitted on his cross-examination, when he said he knew nothing about his pecuniary responsibility except what Birdsall's wife had told him.
The judgment appealed from should be reversed.