Butts v. Dean , 43 Mass. 76 ( 1840 )

Wilde, J.

This case turns on a single question, namely, whether the debt due to the plaintiff, and which was secured by tí .8 bond, in which the defendant’s intestate became bound as a surety, has been paid by the principal debtor. And we think it immaterial whether this question is to be decided by the law of Rhode Island, or of this Commonwealth.

By the report of the evidence it appears, that within a few days after the bond in suit was given, Hall, the principal debtor, gave his own negotiable promissory note of hand to the plaintiff for the amount of the debt due and secured b-- the bond, and af the same time the plaintiff gave him a receipt for the note for balance of account to that date.

The defendant’s counsel contends that this note is to he considered as a payment and discharge of the preexisting debt; and, according to the law of Massachusetts, such is the presumption, unless it can be made to appear that it was not so intended by the parties. But this, we think, has been made to appear very clearly by the evidence reported. The note was given but a few days after the plaintiff had obtained security for his debt ly the bond in question; the note was antedated so as to correspond with the date of the bond, as it corresponds with the condition of the bond, both as to the amount of the debt and the time of payment. Now it is impossible to imagine that the plaintiff, immediately after having obtained security for his debt, should have intended to discharge it, and trust to the credit of his debtor. And so it must have been understood by Hall, the debtor ; for he consented to the antedating of the note, which plainly indicated the plaintiff’s intention of relying on his bond for his security. These circumstances are abundantly sufficient to ascertain the intention of the parties to the note, and to rebut the presumption of payment. This presumption and the facts proved are irreconcilable. The evidence of intention, although circumstantial, is entirely satisfactory.

There is nothing in the language of the plaintiff’s receipt which favors the presumption that the note was received 3n payment of the preexisting debt. It was given cc for balance of account,” not in payment of the debt. The receipt was given as evidence of the settlement of the account, and no further infer gnce can reasonably be drawn from it.

Upon the whole evidence, therefore, we are of opinion that the note of hand was not given in payment of the debt secured by the bond, and consequently that the plaintiff is entitled to judgment.

Judgment on the verdict.