Hatch v. Gage ( 1897 )

Rowele, J.

The plaintiff’s testimony tended to show that the money and the produce sued for were paid and delivered to the defendant under an agreement that they were not to be indorsed on the notes that defendant held against him until they amounted to enough to cancel the interest due at the end of the year, when they were to be indorsed. The defendant denied having received any of the money and some of the produce, and said that what produce he did receive he expected to allow the plaintiff for on the notes when the time came around that he knew the price, but that the plaintiff never gave him the price, and so he never put the articles on the notes.

For some months prior to December 2, 1895, when the notes were paid and taken up, the parties were in controversy about the payment of the money and the delivery of the produce; and at the time the notes were paid, the plaintiff tried to have the same allowed and applied on the notes, which the defendant refused to do, and so the application was not made.

The court correctly refused to charge that the plaintiff could not recover unless the jury found such an agreement as he claimed in reference to postponing indorsement, for the testimony on neither side tended to show that the produce was delivered and received as present payment on the notes, but that both parties contemplated a subsequent adjustment and application, although they differed as to when that was to be made; and as to the money, the defendant denied the receipt of any of it, and the making of any agreement with the plaintiff concerning the indorsement of it or of the produce.

Judgment affirmed.