Flanders v. Stark , 37 N.H. 424 ( 1858 )

Bell, J.

No contract or agreement is here stated between these parties as to the noté or mortgage. No consideration or inducement for any agreement is stated. All that appears is, that the plaintiff left the note with Eames, to remain till Brown’s claim was removed or settled. It seems a voluntary act, of which the defendants could take no advantage, and on which they could rest no rights. As the plaintiff left the note, so far as appears, of his own choice, and for his own purposes, and as Eames was a mere depositary, having no right or claim to the note, the plaintiff had a right to reclaim it when he pleased; and whether he did so or not, it was still his unqualified property, and his right of action upon it was not affected. It is not said that the note was even left at the request of the defendants, and if it had been it would be a mere curtesy, by which the plaintiff would not be bound to let it remain any longer than he chose. It would be otherwise, and might perhaps be a good defence, if the note was deposited in pursuance óf a valid contract.

It is assumed by the defendant’s counsel in argument, that it was a part of the contract between the parties for the sale of the land mortgaged, that the note should be thus deposited. It might be supposed from what is stated that there had been such a sale and such an agreement; and the counsel desires that the case may be amended so as to show a sale, and that the notes and mortgage were given to secure the purchase money, if the court do not now so understand it. But that amendment does not go far enough to connect the deposit with that sale, since it does not make the deposit part of the agreement of sale. The court cannot properly assume that such an agreement as to the deposit was made.

Upon this view, and in the absence of evidence of any agreement to deposit the note, the substance of the charge was correct, that a deposit of the note would not affect the plaintiff’s right to recover. But as the case does not purport to state the whole transaction, and as the statement of an agreement to deposit the note may have been omitted, as not material to the question designed to be reserved, and some expressions of the charge seem to justify that impression; and as the court are of opinion that it was not material whether the claim of Brown was or was not valid, if the note was not to be paid till it was settled or removed; and as it is not rendered certain by the trial in this case, to which Brown was not a party, that Brown may not have some claim, though none was there shown, the charge was liable to mislead the jury, and the verdict should, therefore, be set aside.

Verdict set aside.