Dockray v. Dunn , 37 Me. 442 ( 1854 )

Cutting, J.

— The note produced and read to the jury made a prima facie case for the plaintiff.

The defendant then offered-in evidence the deposition of Benjamin Longley, a member of the firm of Longley & Co., the payees and indorsers of the note. This testimony, if admissible, and that rejected, if admitted, do not constitute a defence. The consideration for the note was another of like amount and date, signed by the witness, and payable to the defendant, and which of the parties was most accommodated at that time, does not appear. The note, soon after its execution, was indorsed to Luther Jewett, as collateral security for a preexisting debt, and by him transferred to the plaintiff after its maturity. The note never was presented at the Suffolk Bank, when and where payable, and where the witness, with funds furnished by the defendant, called to pay it.

■ Upon this evidence, it is contended, in argument, that the note was an accommodation note; and it is true that the witness so swears,-but the facts disclosed show it to be otherwise. An exchange of notes may have been accommodating, but such a transaction constitutes none of the elements of accommodation paper in the mercantile sense of that term. A mutual independant promise, in writing, is a good consideration to uphold the contract of each, and it may be enforced, even by the original party, or discharged by way of set-off, when duly filed.

It is further contended, that the defendant is discharged, by reason of the note not having been presented for payment at the Suffolk Bank. It has been otherwise settled in this State, in Bacon v. Dyer, 12 Maine, 19, re-affirmed in McKenney v. Whiffle, 21 Maine, 98, and in Gammon v. Everett, 25 Maine, 66.

According to the agreement of the parties the default is to stand.

Shepley, C. J., Howard, Hathaway and Rice, J. J., concurred.