Goodrich v. Tracy , 43 Vt. 314 ( 1871 )

The opinion of the court was delivered by

Royce, J.

This was an action of assumpsit on a promissory note which the defendant signed as surety for one Sanderson. It was not claimed in the court below that the note in suit had ever been paid or discharged under the circumstances detailed in the exceptions, unless the receipt of the note, dated January 1st, 1869, operated as a payment or discharge. It was admitted that this last note as far as Bliss was concerned (and he was regarded by the plaintiff as the responsible party) was a forgery. The plaintiff received this note in good faith, and did not know but that the signatures to it were genuine until after the note in suit had been given up. Can the receipt of this note be regarded as a payment or extinguishment of the right of action upon the note in suit ? We think not. In the case of Puckford v. Maxwell, 6th Term, 52, the defendant being arrested by the plaintiff for ¿680, gave to the plaintiff a draft for £45, and agreed to settle the remainder in a few days, and was discharged out of custody. The draft was dishonored, the defendant having no effects of the drawee in his hands, whereupon the defendant was again arrested upon the same affidavit-. He obtained a rule calling on the plaintiff to show cause why he should not be discharged out of custody, and Lord Kenyon, in giving the opinion, says : that in cases of this kind, if the bill which is given in payment does not turn out to be productive, it is not that which it purports to be and which the party receiving it éxpects it to be, and therefore he may consider it as a nullity and act as if no such bill had been given at all. This case has been frequently cited with approbation and we see no reason to question its soundness. It was held in Eagle Bank v. Smith, 9th'Cowen, 74, that a forged note if delivered in payment is no satisfaction or extinguishment of an antecedent demand. -The reason for this is obvious. It is not what the person delivering it either expressly or impliedly affirms it to be, and what the person accepting it believes it to be. The law is well settled that the party giving a security in payment vouches for its genuineness, and that payment of a debt in counterfeit or worthless bills is in legal effect no payment, and in such cases the party receiving them may declare upon the original consideration and recover upon the legal liability ensuing therefrom. Bank of St. Albans v. Farmers & Mechanics’ Bank, 10 Vt., 141; Gilman v. Peck, 11 Vt., 516 ; Torrey v. Baxter, 13 Vt., 452 ; Merkle v. Hatfield, 2 Johns., 455.

In the case last cited, Judge Kent says that a promissory note and a bank note are equally promissory notes for the payment of money, and that there is no presumption that the receiver takes upon himself the risk of forgery. In Hughes v. Wheeler, 8 Cowen, 77, it was held that where an usurious note was given as a substitute for a valid note, which was destroyed by the parties, that an action lay on the original note. So that it is not material to inquire into the circumstances of the delivery of the note in suit to the defendant by Mrs. Goodrich, or what was said or done in connection with it. For in the view we have taken of the case, conceding all that the defendant claimed he had the right to prove, the plaintiff would still be entitled to his judgment. But we have been unable to discover any error in the rulings of the court, in excluding the evidence offered by the defendant. The only ground upon which it can be claimed that the acts or admissions of Mrs. Goodrich could be given-in evidence against the plaintiff is, that she was the agent of the plaintiff so as to be competent to bind him by such acts and admissions. We do not think the evidence showed any such agency. Her agency only extended to the performance of certain specific acts, and the admissions sought to be proved were not so connected with the performance of those acts as to make them binding upon her principal. Her authority was special and limited* and when she exceeded that authority, her principal was not bound. White v. Langdon, 30 Vt., 599 ; Upham Clay v. Wheelock, 36 Vt., 27. The exception taken on account of the want of a revenue stamp has not been urged in this court and we treat it as waived.

The judgment of the county court is affirmed.