Curtis v. Hubbard

Shaw, C. J.*

The declaration in this case having been amended, it now comes before the court on an agreed statement of facts. The main objection relied on is, that the defendant’s guaranty was a stipulation to be collaterally responsible to the plaintiffs for the payment of goods sold to her son, on six months’ credit; that the plaintiffs took the notes of the son, in some instances, at six months ; that such notes operated as a payment and discharge of the debts for goods sold, and so the defendant is not liable on her guaranty. It also appears that the notes remained in the hands of the plaintiffs, and had never been indorsed or negotiated.

The court are of opinion that this objection cannot pre vail. The rule adopted in Massachusetts, that a negotiable promissory note, given for a simple contract debt, shall be deemed payment, is to be taken with considerable qualification. It is founded on the consideration, that when a note is given for goods, even if it is not negotiated, it is equally convenient to the creditor (and generally more so) to sue on the note, as on the original consideration, and so there is no reason for considering the original simple contract as still subsisting and in force; and therefore a presumption arises, that it was intended by the parties that the note should be deemed a satisfaction. But this is a, presumption of fact, which may be rebutted by evidence showing that it was not so intended; and the fact, that such presumption would deprive the party who takes the note of a substantial benefit, has a strong tendency to show that it was not so intended. Maneely v. M’Gee, 6 Mass. 143. In a recent case, where a bond was given, conditioned to secure a balance of account, and a promissory note was afterwards given for the balance of the account, it was held not to be an extinguishment. Butts v. Dean, 2 Met. 76. So where a" note was given for the amount of goods sold, the note was not considered as satisfaction and payment for the goods. Thurston v. Blanchard, 22 Pick. 18.

But this case, submitted to the court both as to law and fact, is not without evidence that the defendant so understood it. The first guaranty, dated July 13th 1839, recites the consent of the plaintiffs to sell goods to her son, on credit of six months, and guaranties payment of a bill of goods, then recently purchased, viz. on the 10th of July. And yet a note, one of the notes now in question, had then been given for the same goods, which she, by reciting the contract, must be taken to have known. She then guarantied the payment for goods, though a note had been given for them, and recognized the understanding of the parties, that, in their dealings, taking a note was not intended to extinguish the debt for the goods sold, till payment of the note.

We think there is no ground for the objection, that the notice to the defendant was not sufficiently full and precise, as to the items of the amount due. The letter of October 17th, giving that notice, refers to the notice of the 12th, with the account enclosed, stating the items on both sides, and the balance; and this afforded her all the information necessary.

[After this opinion was delivered, the parties agreed on the sum for which judgment should be rendered.]

* Hubbard, J. did not sit in this case.