Ilsley v. Jewett , 43 Mass. 168 ( 1840 )

Shaw, C. J.

It appears that in February, 1814, a note for $ 300 was signed by the defendant Jewett, as principal, and by Moses Adams, who is since dead, and the plaintiff Ilsley, as sureties, which note was discounted at the Newburyport Bank, and paid at maturity by Adams, the surety. Adams brought an action against Jewett, the principal, and recovered judgment for the amount of the note, in June, 1816 ; but it does not appear that he obtained satisfaction. It further appears that Adams called on the present plaintiff, as co-surety, for contribution, and that the plaintiff paid him one half of the note, in the year 1816. From this statement it is manifest that one surety having paid the whole, and received a contribution from the other surety, they paid the debt of their principal, in equal shares of one half each ; and therefore each had a right of action against the principal, as for so much money paid to his use.

One ground of defence, which it may be proper to notice here, is, that Adams assigned his judgment to Martha Jewett, the mother of the defendant; that she by her will bequeathed it to her son, the defendant, and thereupon the whole debt was merged and discharged. But it will be perceived that this assignment was made by Adams to Martha Jewett, in 1818, after he had received one half of the note from the plaintiff, his co-surety. Though he had a judgment for the whole, yet, having received one half from a co-surety, he could legally have enforced satisfaction for one half only ; as in case of several judgments against promisors and indorsers on one and the same note, the creditor can obtain but one satisfaction. The legal effect of the assignment of the judgment to Martha Jewett was, to transfer the assignor’s interest, and no more, which was one half. Besides ; after the plaintiff paid one half to Adams, as co-surety, he had an immediate right of action against the principal, which A dams could not take away or inmair by any act of his.

Was this right of action barred by the statute of limitations ? The lapse of time was sufficient, if not within some of the exceptions. By the Rev. Sts. c. 120, § 13, it is declared that in any action founded on contract, no acknowledgment or promise shall take a case out of the operation of the statute, unless made in writing and signed by the party chargeable thereby. But by § 17, it is further declared that nothing contained in the above section shall take away or lessen the effect of a payment of any principal or interest. By the law, as it stood before these enactments, part payment of a note, or other simple contract debt, was held to take the debt out of the operation of the statute. Hunt v. Bridgham, 2 Pick. 581. And therefore it continues to have the same effect still.

It has been often held in this Commonwealth, and is now considered as a settled rule of law, that giving a party’s own promissory negotiable note, for a simple contract debt, is prima facie evidence of payment, and will be so held, unless rebutted by clear proof that it was not so intended. Thacher v. Dinsmore, 5 Mass. 299. Maneely v. McGee, 6 Mass. 143. Wood v. Bodwell, 12 Pick. 268.

Conformably to this rule, we think it clear that the giving of one’s own negotiable note, for part of a simple contract debt for money paid, is a part payment of such debt. And therefore if a promissory negotiable note was given by the defendant, in part payment of that simple contract debt for money paid to the defendant’s use, it did, by force of the statute, and the construction put upon the old statute, take the simple contract out of the operation of the existing statute. Being, in legal effect, not merely an acknowledgment or promise, but a payment, no writing was necessary. The effect is the same as if the amount had been paid in bank notes or coin. This is an answer to the objection, that the note ought not to operate as a promise in writing, to pay more than it promises to pay, and that to hold it to be a promise to pay the balance, would be to pervert its terms, and make it speak a language, which it does not speak. But the answer is, that it is not considered as a promise in writing to pay the whole debt; but is of itself, defacto, a payment of part, and so, by force of the statute, the case is taken out of its operation.

It was contended that it was not competent to admit parol evidence, to show for what purpose, with what intent, and under what circumstances, the note was given. But the evidence is not to alter or vary the terms of the note, or any written contract. When an act is done, the language which accompanies it qualifies it, shows the purpose, and constitutes part of the res gesta. Suppose the witness, Ilsley Jr. had seen the defendant deliver to his father $ 50 ; would it not be competent to prove, by the declarations and language of the parties at the time, on what account, and for what purpose it was delivered — whether it was a loan or a payment, and if the latter, on what account ? We think it would, and that the evidence in the present case, showing on what account the note was given, was competent.

From the evidence, thus offered, it appears that the demand of the plaintiff was for the money paid by him as surety for the defendant, on a note at bank ; and no other being shown ever to have been thus paid, but the one stated, it may be inferred to be that. The defendant offered to give his note for $ 50, in part pay, and the same inference fixes it to be in part payment of that debt for money paid at the bank, as surety. Being asked to give his note for a larger amount, the defendant answered, “ That is all I can do at present.” Shortly after, the note was made and handed to the plaintiff.

The defendant having afterwards obtained possession of the note, under the circumstances stated in the case, a question was raised, whether the note was ever in fact made and delivered, so as to make it a contract binding on the defeidant. The court are of opinion that it was. It was signed i ton after the foregoing conversation, and delivered unconditio. tally to the plaintiff. It purported on the face of it, according to the proof of the contents by the witness, to be in part pay, at six and twelve months, with interest. The plaintiff, not the defendant, handed it to the witness, who thereupon attested it at the defendant’s request. The defendant stood a few minutes, and then asked the plaintiff to hand it to him ; he hesitated ; but Jewett told him he was not going to run away with it; he should have it again. The plaintiff then handed it to him, and then the defendant refused to return it, unless the plaintiff would give him a receipt in full, which he declined. The court are of opinion, that this attempt, for the first time, to impose a condition, came too late. He might undoubtedly have made what terms he pleased, before he gave his note. But as it was, the delivery of the note was complete and unconditional, and took effect as a promissory note ; and this was not vacated by the delivery back of the note to the defendant, on his promise to return it again.

This promise, being a payment in part of the simple contract debt, we think took the debt out of the operation of the statute of limitations. But it also satisfied that debt pro tanto, and the plaintiff can recover only the balance, with interest, deducting such payment, from the time he paid Adams. Gibbs v. Bryant, 1 Pick. 118. He is not entitled to recover on the note, in this action, because it was not due when the action was commenced.

The verdict, which was taken by consent, is to be amended, and judgment rendered thereon for the plaintiff.