Harrington v. Rathbun , 11 Vt. 58 ( 1839 )

The opinion of the court was delivered by

Williams, Ch. J.

It is unnecessary to consider or decide whether a negotiable note negotiated is evidence under the money counts, in an action by the indorsee against the maker, as, upon another ground, the caséis, beyond controversy, with the defendant.

To sustain an action of assumpsit, it must appear, not only that the defendant is indebted, but that he has failed to fulfil his contract, and that the same-was due and payable at the commencement of' the suit. No one can recover a sum of money expressed in a contract, unless there have been a breach of the same, and by the terms of such contract it has . . . . . become due. The writ in this case issued, and was served on the ninth day of August A. D. 1836. One of the indorsed notes bore date the 28th of June, 1836, payable three months after date. The other note was dated July 18th 1836, payable three months after date, and neither of them due until after the service of the writ. It would be absurd to say, as has been argued, that, although an action could not be maintained directly on the notes until they arrive at maturity, yet, by substituting an action in another form, it could be sustained at any time after the date thereof. The judgment of the county court must therefore be reversed, and the defendant will recover his costs before this court, and, agreeably to the rule entered into by the parties, the amount of the indorsed notes will be deducted from the damages, and the plain tiff may take judgment for the amount of the other note, which is undisputed.