Parkhurst v. Jackson , 36 Me. 404 ( 1853 )

Rice, J. —

The defendant, Jackson, had borrowed money of Johnson to the amount of about two hundred dollars, for which he gave his note, on which the plaintiff was .surety. Jackson had also made an arrangement with Lunt, by which Lunt, was obligated to pay all his debts, and also a contract in which Lunt, among other things, obligated himself by bond, to support the defendant during his natural life, and as security for the fulfillment of the conditions of this bond, Lunt gave the defendant a mortgage of his farm. In this condition of things the defendant contends, that the plaintiff paid the notes to Johnson under an agreement with Lunt, and for Lunt, whose duty it was to discharge these notes.

The case, then, presents but a single question of fact, to wit, whether the plaintiff paid the notes of Jackson to Johnson, for Lunt, or on his own account, as surety for Jackson. If they were paid for Lunt, they were thereby "discharged, absolutely, as against Jackson, and this action cannot be maintained. If the payment was as surety for Jackson, then the plaintiff is entitled to recover for money paid for defendant.

The jury were instructed, that if Lunt at that time (when notes to Johnson were paid) gave the plaintiff a note or contract to pay him the amount paid to Johnson, the presumption of the law was, that such note or contract was received in payment, and not as collateral security, and plaintiff could not recover, unless he should satisfy them by proof, that such note or contract was not received in payment, but as collateral security.

The defendant contends, that this instruction was too narrow, and calculated to restrict and mislead the jury ; that it was wholly immaterial whether Lunt gave the plaintiff a note or other contract to pay this money or not; that the true and only question was, whether the money was paid for Lunt. This may be so. But before we can determine, that the instructions were erroneous, we must look at the state of facts upon which they were based. Mary Lunt, a witness, 'introduced by the defendant, testifies that the arrangement between the plaintiff and Lunt was, that the plaintiff was to pay Johnson, and Lunt was to give him his notes and a deed of his place therefor. Lunt, a witness also introduced by the defendant, testified, that he did give the plaintiff his note or agreement in writing, payable in installments of one hundred dollars yearly, for a sum in which the money paid to Johnson was included. There is no suggestion of any other arrangement, or that the money was paid in any other manner. In view of the facts presented, the instructions were sufficiently broad to cover the whole case, and as favorable to the defendant as the law would admit.

As to the motion, it is objected that the case is not certified by the Judge as containing the whole evidence, which was presented at the trial.

The law as it then stood did not require such a certificate of the presiding Judge. The case seems to have been presented to the jury by the presiding Judge with great care, and their attention was particularly called to the real point in issue between the parties. There was evidence on both sides, and it is manifest, that the jury did not place full reliance on the testimony of Lunt. Looking at the whole evidence in the case, the Court cannot say, that it clearly appears, that therein they were in error. Exceptions and motion overruled.

Judgment on the verdict.

Tenney, Appleton and Hathaway, J. J., concurred.