After a careful examination of the evidence relating to the contract between the parties, I have come to the conclusion that the judgment cannot be reversed on the ground that the facts found by the referee are against evidence, or unsupported by the evidence. The evidence upon this question is given by the two sons of the plaintiff. ' There is no question about the sale and delivery of the horse. The important question was, what was the contract between the parties touching the payment for the horse; or rather, upon what agreement the horse was delivered.
Augustus Torry, a witness for the plaintiff, stated that the defendant came to the plaintiff’s and wished to know if the
The defendant at the time had a note-for over $200, against Palmer, and his object was to have Palmer divide this large note and give one for $200. He did not inform the plaintiff whose note he proposed to give, and it does not appear that the plaintiff knew Palmer. They resided in different towns, and several miles apart. The plaintiff did not authorize his son Freeman to accept any note, or to go for any note, and when the note was brought to him he said he did not know the man, and laid the note away. These facts, I think, are material. The plaintiff sold and delivered the horse upon the agreement, by the defendant, to deliver to him a note of a third man. He did not know who the man was, or was to be. The note was not then made. It is clear that the horse was
Is it probable that the plaintiff would have parted with his property, upon a promise of payment in the note of a third person, without knowing who that person was, and without any stipulation in the contract touching the responsibility of the maker of the note ? This is very improbable. Hence his language, “ I will take another man’s note if you will bring a note that is good for itor, according to the other witness, “ I will take a good note,” or “ a good man’s note for it.” It was upon such terms only that he delivered the horse.
The referee was justifiable in finding that the horse was delivered upon a contract that the defendant should deliver to the plaintiff a good and collectible note of a third person responsible for the sum. This was an original undertaking, upon a valuable consideration, and entirely outside of the statute of frauds. The defendant never performed his agreement. He never delivered such a note. The plaintiff is not concluded by the fact that he received the note from his son and laid it away, remarking that he did not know the maker. A good note meant a note made by a solvent maker and which could be collected by due course of law. (Cooke v. Nathan, 16 Barb. 342.)
It may be conceded that the horse was not sold on credit, in the ordinary acceptation of the term, but that the delivery was upon the condition that payment should be soon made in a particular thing and way, Such payment has not been made. The thing agreed to be delivered has not been delivered, though the plaintiff may have supposed, at the time he took the note, that it was a good and collectible note.
The referee has found, as a fact, and I think his finding is warranted by the evidence, that the plaintiff did not receive
Grover, Marvin and Davis, Justices.]
When the note of a third person is taken by the vendor of property at the time of the sale, there is a presumption that the parties agreed it should be taken in payment; but this presumption may be rebutted, and if it appear that such was not the agreement, the vendor may maintain his action as for property sold and delivered. (3 Kern. 168.) I do not think that any of the exceptions taken upon the trial, or to' the report and decisions of the referee, are well founded.
The judgment should be affirmed.