Griffith v. Grogan

Field, J., delivered the opinion of the Court—Terry, C. J., and Baldwin, J., concurring.

The money placed in the hands of the defendants, in March, 1853, [321]cannot, in strictness, be termed a deposit. The defendants were to have the use of the money, and to allow interest upon it, although the plaintiff was at liberty to withdraw such portion of the same as he chose, at any time. It was, in fact, a loan payable in whole or in part, on demand. In what manner, therefore, the defendants used the money, it is of no consequence to inquire. It was to them, and not to any investments of the money, the plaintiff was to look for repayment.

In December, 1854, the defendants rendered their account to the plaintiff, and a settlement of the balance due was made. In such account the plaintiff is charged with a note of Hale & Vincent for $2,500. This note was received, as it would appear, without objection by the plaintiff, and was then left by him with the defendants for collection. Upon its maturity, the note was not paid, and the plaintiff, after some months’ delay, called upon the defendants for the amount for which it was taken in the settlement. The defendant, Lent, then advanced $1,250 of the amount in cash, and a new note of Hale & Vincent for the balance, payable in one year, was given to the plaintiff. This arrangement was made in October, 1855, under the supervision of Lent, who appears to have acted under the impression that his own liability would be discharged by the payment of one-half, his copartnership with Grogan being at that time dissolved. The new note not being paid, the present action was brought to recover the balance remaining due upon the account rendered upon the settlement, the subsequent payment by Lent being credited thereon. On the trial, plaintiff produced the new note of Hale & Vincent, and offered to deliver the same up to the defendants.

The only questions material for the determination of the case, relate the effect upon the claim of the plaintiff of taking the note of Hale & Vincent in the settlement of December, 1854, the effect of the renewal of the note, and the application of the Statute of Limitations to the demand.

The consideration of the note of $2,500 is of no moment. Whether given for a loan of a part of the money received from the plaintiff, or upon a sale of flour, is immaterial. The only point for consideration relates to the intention, or rather the agreement, with which it was received by the plaintiff. Unless received by express agreement as