Jones v. Snow

Thornton, J. This action was brought by the assignee of the payee on a promissory note dated January 20, 1880, for $1,078.20, payable one day after date, without grace, with interest at the rate of one and one quarter per cent per month until paid. The defendants, who are the makers of the note, pleaded payment in full before its assignment, which assignment was made after its maturity. Judgment was rendered for plaintiff for $570.50 and costs, whereupon defendants moved for a new trial, which was denied. Defendants thereupon [457]appealed from the order denying their motion and from the judgment.

A bill of exceptions found in the record shows that the plaintiff made out a prima facie case, whereupon the defendants, to establish their plea of payment, offered in evidence the deposition of defendant H. W. Snow, regularly taken, to which plaintiff’s counsel objected, on the ground that it was irrelevant and immaterial, and on the further ground that the answers were evasive. The court admitted the deposition in evidence, with the exception of what follows here: —

“ Question: State Avhat, if any; payments you made upon that note. To Avhich Avitness ansAvered : When the second note Avas given (meaning the note on Avhich this action Avas brought), it Avas agreed between Jones and myself that I should pay the interest and such principal as I could by orders on me, and by paying the premiums due from Jones on certain insurance policies. This I did by paying orders drawn on me by Jones and paying premiums upon insurance policies held by Jones. The total amount of payments so made by me was $522.47.”

This ruling is assigned for error, and we are of opinion that the point is well taken. We cannot see by what canon of evidence the ruling could be sustained. It did not in any manner vary the contract as embodied in the note. The note in all its terms Avas admitted by it as existing and effectually binding the makers. It was not offered to show that the payment of the note Avas to be postponed until it was made in the way stated in the agreement. It Avas offered in connection with testimony tending to show actual payment of $522.47. The agreement was made with'Jones, the payee, and was substantially this: That payments made in the mode designated should be regarded as payments made on the note, as long as the note remained unpaid and under the control of Jones, the payee and assignor of the plaintiff. Without such agreement, the sums making up the $522.47, when disbursed even at the request of Jones, the payee, only created the relation of debtor and creditor, and did not constitute as between the payee and defendants payments on« the note. In an action brought against defendants by the payee, they might have been set up as a counter-claim; and if they might haAre been set up in the same manner against the