The President Arthur , 22 F.2d 584 ( 1927 )

THACHER, District Judge

(after stating the facts as above). The rule is settled that, when a note of a third party is taken at the time of the creation of a debt, as upon a sale of goods, the presumption is that it was taken in payment. Atlas S. S. Co. v. Colombian Land Co., 102 F. 358 (C. C. A. 2d); N. Y. & Cuba S. S. Co. v. Texas Co., 282 F. 221 (C. C. A. 2d); Hall v. Stevens, 116 N. Y. 201, 22 N. E. 374, 5 L. R. A. 802.

There is no need for such presumption in this case, because the agreement expressly required payment coincidentally with the delivery of the coal by delivery of trade acceptances bearing three indorsements. The agreement which the parties made is conclusive, and if there were evidence of intention contrary to its terms this could not be considered. But there was no such evidence. In the face of the agreements, no maritime lien could arise, because the coal was to be paid for on delivery. Even if a lien had arisen, it certainly could not survive payment in the form the parties expressly contracted for, namely, the delivery of the acceptances. It is entirely clear, I think, that the libelant did not rely on the credit of the ship.

The libelant having no lien, its suit fails, and the complaint will be dismissed, with costs.