Strong v. McConnell , 10 Vt. 231 ( 1838 )

The opinion of the Court was delivered by

Collamer, J.

— The plaintiff’s account is for boards or lumber, delivered in 1830. The defendant insists that this lumber was delivered in payment of a note, then held by the defendant against the plaintiff, payable in lumber. If a payment be made on an existing debt, it cannot be recovered back, even though the whole debt be afterwards collected,1 by law. When it is payment, as such, it creates no debt. If the whole debt is afterwards collected by law, it cannot, jj in part or in whole, be recovered back, until the judgment j is reversed. This, however, is stricti juris, and to bring aj case within it, the facts must be clear and definite. It is true, that to render the payment such, in the present case, it was not naecessary it should be indorsed on the note, but it must appear that it ivas both delivered and received in payment, as it was a payment in lumber on a note, after the pay day had transpired. It must appear that it was so delivered and received in payment, and that nothing more was to be done, beetween the parties, to complete the application. In this case, it appears that the defendant directed the plaintiff to keep an account of the lumber, with a view to a future adjustment. The defendant also kept an account of the boards, by crediting them on book. The auditor reports, that when the lumber was delivered and charged, it was with the intention that it should thereafter be applied in payment. All this shows that the parties were yet subsequently to arrange and make the application. The defendant did not consider it as payment, for he made no endorsement on the note, but took judgment for the whole note, and collected it. He, even after this suit, by his attorney, made a tender on this debt.

Whatever may have been the ultimate designs of the parties, whatever- might have been intended finally to be done, we cannot say the lumber, when delivered, was actually in payment at the time.

Judgment affirmed.