Weller v. McCarty , 16 Vt. 98 ( 1844 )

The opinion of the court was delivered by

Redfield, J.

The only items of the account disputed are two for money paid Dinsmoor, and endorsed on defendant’s note to him, being two hundred and seventy eight dollars. It is not found that this money was paid with a view to purchase the notes, — and the fact of its being endorsed upon the notes would seem to be inconsistent with any such presumption. It is expressly found that the money was paid on the request or by the consent of the defendant. He would then be liable for it in general assumpsit, and equally in this form of action, unless there was some special contract which precluded such recovery. This is not pretended, unless the agreement of the defendant to give security on his farm for the same, or that of Dinsmoor to assign the notes and mortgage, is to have that effect. The payment of the money in itself, under the circumstances, created an obligation. The execution of a bond and mortgage, or the assignment of the notes, might have extinguished it. The first would of course, and the latter would if so intended ; but it would seem not certain that there was ever any intention of assigning the mortgage, except as security. Neither of these modes of giving security have been executed.

The debt, then, is not in fact merged. And there are no facts found from which this court can say, either that the plaintiff agreed to give credit for time of payment, or to put it in a note secured by' mortgage. The simple obligation of payment then remains. And the recovery may well be had in this form of action. The right to charge money on book, and to recover for that alone, is now too well settled to be brought in question.

Judgment affirmed.