Candee & Smith v. Fordham Stone Renovating Co.

Scott, J. (dissenting):

The agreement sued upon is an original one, to pay for lime, cement, etc., to be furnished to Brisack. (Raabe v. Squier, 148 N. Y. 81.) It is not an agreement of suretyship nor one to pay the debt of another. The fact that when the agreement was made Candee & Smith were a copartnership, and that plaintiff shortly afterwards became a corporation is unimportant, because the promise was to those who carried on the business, and by their course of action, long continued, the defendant recognized its liability to the plaintiff. (Beakes v. DaCunha, 126 N. Y. 293.) The authority of defendant’s president to make the agreement is to be inferred from defendant’s long acquiescence in it and compliance with its terms. The acceptance of the note of Moen, defendant’s president, did not discharge defendant’s indebtedness. To say that it was taken in settlement ” of the claim does not necessarily mean that it was taken in payment, but may equally mean that it was accepted as a liquidation and acknowledgment of the amount due. (Fort v. Gooding, 9 Barb. 371.) The debt was past due when the note was taken, and in such cases the rule is that the acceptance of of the note or draft of a third person will not be presumed to have *18beén in satisfaction of the debt, and the onus of establishing that it was so received rests upon the debtor. (Noel v. Murray, 13 N. Y. 167; Gibson v. Tobey, 46 id. 637; Smith v. Ryan, 66 id. 352.) The judgment should be reversed and a new trial granted.

Houghton, J., concurred.

Judgment affirmed, with costs.