The defence of payment is positively averred in the answer. After a general denial, “the defendants aver, that if the plaintiffs shall prove the making of the note declared on, or any of the items in the plaintiffs’ bill of particulars, the same have been fully paid.” The case is clearly to be distinguished from Caverly v. Mc Owen, 123 Mass. 574, and the other cases cited by the plaintiffs.
It appears from the bill of exceptions, that the defendants sent the note of a third party, indorsed by them, together with their own check for a small amount, to the plaintiffs, as and for payment of the plaintiffs’ demand, and the same were received by the plaintiffs with full knowledge that such was the defendants’ intention. If the plaintiffs were unwilling to accept the note and check in payment, it was their duty within a reasonable time to return them to the defendants, directly or through their agents, to whom they had entrusted the collection of their demand. There was evidence from which it might fairly be inferred that the person to whom they were sent in Massachusetts, to be returned to the defendants, was the agent of the plaintiffs, for whose neglect they were responsible. This agent, instead of returning them as directed, indorsed the check, deposited the same in bank, and it was duly paid, and returned to the defendants through their own bank; the note he lost soon after receiving t. After the maturity of the note, and more than four mon is after its loss, he wrote to the defendants that the note was lost, that the plaintiffs refused to receive it, and demanding payment of the original debt in his hands for collection.
*421By the neglect of their agent the note was not returned within a reasonable time; and although the defendants had reason to suppose, from the collection of their check, that the check and note had been accepted in payment, they received no notice of the loss of the note until after its maturity. The loches and misconduct of the plaintiffs’ agent made the note and check their own, and operated as satisfaction of their demand. The plaintiffs cannot now say that’ their demand was not paid by the note and check; and the presiding judge correctly ruled that there was sufficient evidence of payment. See Taylor v. Wilson, 11 Met. 44; Camidge v. Allenby, 6 B. & C. 373.
Exceptions overruled.