The opinion of the court was delivered by
Hebard J.The important question in this case is, for what purpose were those notes given and received 1 If they were given and received in payment, they must operate as a payment. And this is a question of fact growing out of the contract of the parties j and, so far as the auditor has found the fact, it is conclusive.
A note, as well as any other species of property, may be received for some other purpose besides payment. There are some circumstances, under which it would be more reasonable to presume that the note was intended as payment, than under others. If the parties had settled their accounts, and ascertained the balance due, and a note had been executed for the amount of this balance, there would be a very strong presumption that the note was intended as payment. But, in that case, it would be a matter of contract, express or implied, growing out of the understanding of the parties.
Under what circumstances then were these notes received 1 This must be determined by the report. That finds that one of the plaintiffs called upon the agent of the defendant for payment, and that the notes were obtained by the agent and delivered to the plaintiffs to enable them to raise money. The whole of this point seems to be disposed of by the auditor. The notes were neither given, nor received, in payment, but to raise money. The money not having been raised upon them, they therefore failed to answer the purpose for which they were created.
But it is said, in argument, that the plaintiffs did apply these notes in payment of the account, by giving credit upon their books. And the plaintiffs attempt to avoid the effect of that, by showing that this was their mode of doing their business. But whether it was, or was not, I do not think it important, to inquire: nor whether the defendant could be affected by the plaintiffs1 business habits, when they were not proved to be known to him. The crediting those notes on the plaintiffs’ books did not affect the purpose for which they received them. They might as well give the defendant credit for them upon book for the defendant’s security, as to have given him *35a receipt. The putting them upon book was of no importance, so long as the real purpose for which they were received could be ascertained. And, on the other hand, if they had been received in payment, and not credited, yet if the defendant could establish that fact, he could compel the application still; so that the putting them upon the book is of no importance one way or the other, any farther than that fact may have a tendency to show for what purpose they were in fact received. And, as the auditor has found the fact, we are concluded upon that point.
It was upon this view of the case that the decision was made in Hutchins et al. v. Olcott, 4 Vt. 549, that “ a promissory note, given and received in payment of an antecedent debt, is a bar to an action on that accountand, consequently, whether the note was so given and received is a question of fact, which in the present case has been found. It therefore becomes unnecessary to attempt to reconcile the different views that may be entertained by the courts in different States, as there is no case, we apprehend, which goes so far as to compel the application of a note for a different purpose from the one the parties intended, when that purpose could be ascertained.
The judgment of the County Court is affirmed,