The opinion of the court was delivered by
Redfield, Ch. J.The note surrendered being in every respect the same which the auditor reports was given by Platt, and no question being made in regard to its genuineness, and there being no pretense that he executed more than one such note, we must conclude it is the identical note. This will remove all question upon that ground.
But if the note had not been in fact surrendered, it would be no objection to the recovery so long as it remained in the custody or power of the party. But if it were negotiable and had been negotiated, (which the report does not show in the present case, and which we could not presume,) it must be surrendered before the party is entitled to execution upon his judgment. •
*168In regard to the receipt which the plaintiffs gave Platt, it was certainly not conclusive of payment. This being a New York transaction is governed by the New York law, which, as laid down by this court in Rosseau v. Cull, 14 Vt. 85, in the language of one of their own judges is, that neither the note of the debtor, or a third person, taken for the amount of an account is to be regarded as payment unless it be expressly so agreed. The receipt was in the usual form, and really imported nothing more than that the plaintiffs had taken Platt’s note for the amount of the account payable at a bank, and which, when paid, would operate as payment of the account. These legal consequences were not indeed all stated in the receipt, and it would have been very unusual if they had been. But business men in New York, knowing the law, would of course understand them upon being shown the receipt; and so must the court; and so was the defendant bound to do when the receipt was brought to- him. And there is nothing in the case to show that he was misled by the receipt, or that the plaintiffs in giving it had any reason to suppose he would he, or that Platt attempted to mislead him by it. And all these results are requisite to have it operate as an estoppel in pais against the plaintiffs heyond its effect upon the account upon other grounds.
This receipt is not a general receipt in payment, and if it had been it might, as between the parties, have been explained by oral evidence, and its operation wholly defeated by showing in what the payment was in fact made, and that it had failed of being productive.
But in that case the argument made here might properly arise if the receipt had been shown to the defendant, and he had been so induced to act upon it as to have suffered loss. But here the plaintiffs seem to have guarded against such a result with great circumspection, by stating upon the face of the receipt the nature of the payment. ^
We said at the argument we could not regard the sales by the plaintiffs to the defendant, being a town agent, as any violation of the statute. We are confirmed in that view. The authority to the defendant to sell must imply an authority to buy. If not, he must have been expected to manufacture what he sold, which *169could not be supposed. And tbe agent having an implied authority to buy for the purposes of his agency, it could not, without some express provision of the statute, be required of those who sell such agent to be responsible for the uses to which he put it or the intent with which he purchased it.
Judgment affirmed.