Jose v. Baker , 37 Me. 465 ( 1854 )

Shepley, C. J.

— Under what circumstances a note, bill of exchange, or order of a third person, received by a creditor from his debtor, will operate as payment, has been recently considered by the Superior Court in the city of New York. The law as there held, appears to be founded upon the authority of previously decided cases, and to commend itself to the judgment.

Such paper there never operates as a satisfaction of a precedent debt, “ even when a receipt is given by the creditor •acknowledging the bill or note to have been received by him as payment in fullunless it be expressly shown, that such at the time was the agreement pf the parties.

But when the seller of goods, at the time of sale accepts such paper of a third person, not indorsed by the debtor, and gives a receipt for it as a,payment in part or in full of the price, the presumption of law is, that such payment was meant to be absolute, and that the purchaser was to be wholly discharged. St. John v. Purdy, 1 Sand. 9; Noel v. Murray, 1 Duer, 385.

The only difference between the law as administered in England and in that State, and as, received in this State, consists in the effect here given to negotiable paper. The paper received by the plaintiffs in this case was not negotiable.

It appears that the account sued was for goods sold and delivered on May 16, 1851. The order was drawn by the defendant on A. B. Baker, and accepted on February 1, 1852, and it was receipted for by the plaintiffs, as received in payment of that precedent debt; but it could not by law so operate without proof of a special agreement to that effect, of-which the case finds none.

The facts, that there was an open account between the plaintiffs and A. B. Baker, and that goods were received of him on account after-that time, do not afford any satisfactory proof, that such goods were received on account of that order.

The rights of the parties cannot be affected by the entries made by A. B. Baker on his books.

Defendant defaulted.

Howard, Rice, Hathaway and Cutting, J. J., concurred.