If it was a part of the original agreement between the parties that the plaintiff should take Townsend’s note, in full satisfaction of the goods sold, so that he, and not the defendants, should run the risk of the note, then, undoubtedly, the plaintiff has no right of action. But the fact, whether such was or was not the agreement, was submitted to the jury, and they have decided in favour of the plaintiff! The books all agree that there must be a clear and special agreement that the vendor shall take the paper absolutely as payment, or it will be no payment, if it afterwards turns out to be of no value. (2 Ld. Raym. 929, 930. 1 Salk. 124. 7 Term Rep, 66. 3 Johns. Cas. 72. 6 Cranch, 264.) And this rule, requiring such a special agreement, ought to be adhered to, for it is well calculated to prevent fraud and support justice. Was the evidence of the agreement in this case so clear as to call upon the court to set aside the verdict ? One witness understood the agreement in that light; yet, when the note was offered in payment, the plaintiff said it ought to have been endorsed by the defendants, and the defendants did not then urge the alleged agreement that they were to take no risk of the note, but removed the objection of the plaintiff; by saying that it would make no difference. The terms of the receipt are not decisive. It might still have been understood, consistently with the words of it, that the note was received in full, under the usual condition of its being a good note ; and besides, receipts have always been held open to explanation.
Upon the whole, there was evidence on both sides, and as the justice of the case is as much, if not more, with the plaintiff than the defendants, the court cannot interfere.
Motion denied»