Frost v. Frost , 11 Me. 235 ( 1834 )

Weston J.

delivered the opinion of the Court.

If the money, sought to be recovered in this action, was paid by the plaintiff, on account of a note held by the defendant against him, in part consideration for the farm conveyed to the plaintiff, before it was reclaimed by the defendant for condition broken, the action cannot be maintained. The breach of the condition was the act of the plaintiff, and be cannot thereby lay a foundation to recover back the money, he had formerly paid. The cases of Rounds v. Baxter, 4 Greenl. 454, and of Morton v. Chandler, 6 Greenl. 142, and such as are'there cited, are authorities to this point. The note given to the defendant, was a cash note, payable on demand. It was on its face absolute, without any condition whatever.

A number of cases have been cited by the plaintiff, to show that the note could not be affected by any conditions proved by parol, or by any collateral parol agreement. The authority of these cases is not intended to be controverted. Payment is provable by parol; and it may be made either to the payee of a note, or to any other person he may appoint to receive it. When paid, according to appointment, it is thereby discharged. Before payment, such appointment is revocable ; and cannot be insisted on, as modifying or varying the obligation to pay, according to the terms. The evidence in substance is, that at the time the note was given, the plaintiff told the defendant he might pay the amount to certain of his creditors, and take up their demands. This appears to have been intended as an agreement binding upon the plaintiff, and not subject to his control. It is not as an agreement, varying the terms of the note, that it can be enforced. But as an order or direction, having reference to payment, which is an after transaction, it becomes valid and operative, when payment is made accordingly.

When payment was once made, in pursuance of the direction of the defendant, that direction was no longer subject to be conn-termanded. His creditors, to whom it was paid by his appointment, had a right to retain it; and the plaintiff, having thus paid the note, was not liable to pay it again. If by mutual consent, or by the act of both parties, the application of these payments to the note had been waived, and the plaintiff had otherwise paid it, he would have been entitled to recover of the defendant what he had paid to his creditors, as so much money paid for his use and benefit. But although the defendant, at two several times, insisted that what was paid for him should not be applied to the note, the plaintiff at the same times contended that it should. If each party now finds it for his interest to take an opposite ground, there is the same reason for holding the plaintiff, as the defendant, to what he then claimed. If what each set up as a claim, is proved as an admission, they neutralize each other, and leave the parties precisely as they were before. The plaintiff paid money to the defendant’s creditors by his direction ; but as the payment was made to extinguish the note held against him by the defendant, he did not thereby become the defendant’s creditor.

Whatever was paid before the land was reclaimed for condition broken, the defendant may retain ; but he cannot demand further payments, after taking the land. In the opinion of the Court, the jury were properly instructed by the Judge, who presided at the trial.

Judgment on the verdict.