Hook v. White

By the Court, Sprague, J. This action is upon a joint and several promissory note, by the payee against one of its makers. The complaint avers: “ That at the time and place therein mentioned defendant executed to plaintiff a promissory note in writing, of which the following is a copy,” setting out the note in hoec verba, and then avers: “That said note has not been paid, nor any part thereof, except the interest up to March 1st, 1867, and that the entire principal sum of said note, together with interest from March 1st, 1867, was then due from defendant to plaintiff.”

The defendant’s answer “denies, on his information and belief, that the note set out in the complaint has not been .paid, and denies, on his information and belief, that there is due to the plaintiff on said note any sum of money or anything.”

And for other and substantive matter of defense defendant, upon his information and belief, avers that his co-obligor, before the commencement of the action, delivered to plaintiff certain personal property of value sufficient to pay said note, with permission and direction to sell the same, and out of the proceeds of the sale thereof to pay said note and interest. That plaintiff accepted said property, agreed to sell the same, and out of the proceeds thereof to pay the note. That plaintiff never returned said property, accounted for the same, or the proceeds of the sale thereof. And as a further and separate defense, and by way of counterclaim, defendant [301]alleges that the note was given in part payment for services rendered by plaintiff as a millwright to defendant, his co-obligor, and one P. Taylor, in the construction of a mill, and avers that said mill was by plaintiff carelessly, negligently, and unskillfully constructed, whereby defendant was damaged in the sum of one hundred five hundred dollars, for which he prayed judgment.

Both complaint and answer were verified.

A demurrer was interposed by plaintiff to all the affirmative portion of the answer, which was sustained by the Court, and subsequently, upon notice to defendant, on motion of plaintiff, after argument by counsel and testimony in behalf of plaintiff, judgment was rendered for plaintiff on the pleadings.

The demurrer to the affirmative matters contained in the answer was properly sustained. The delivery of property to plaintiff' by defendant’s co-obligor with instructions to sell and apply the proceeds in payment of the note is not payment or satisfaction, and the matters alleged in this connection constitute no legal defense to the action or suspension of plaintiff’s right of action. (Taggard v. Curtenius, 15 Wend. 155; Daniels v. Hollenbeck, 19 Wend. 410; Hawley v. Foote, 19 Wend. 517.)