Bantz & Co. v. Basnett
| Decision Date | 08 November 1877 |
| Citation | 12 W.Va. 772 |
| Parties | BANTZ & CO. v. BASNETT. |
| Court | West Virginia Supreme Court |
T. S B. & Co., as assignees of H., bring an action of debt on a non-negtiable promissory note against B., for $1,000.00, and B. pleads payment to H. before notice of assignment, and with his plea files a statement of the payment, viz: Cash paid to H., March 29, 1861, $550.00; an account on Hiram Haymond, $50.00, and a note of said B dated March 29, 1861, for $408.00, aggregating $1,008.00; and to sustain his plea, B. gives in evidence the following receipt:
B. proved by himself and another, the making of said receipt by H. and the agreement of H. to surrender the $1,000.00 note to B. as soon as he could get it from Baltimore, where he had left it with other papers, but he never surrendered it and B. was not notified that it had been assigned to T. S. B. & Co. Upon the trial, the court instructed the jury, " That the execution and delivery of the promissory note for $408.00, mentioned in the pleas and evidence, was not a payment upon the said $1,000.00 note; and that unless the jury should believe from the evidence that the defendant had paid the said note of $408.00 prior to his receiving notice or knowledge that said $1,000.000 note had been assigned, they should find for the plaintiffs for so much or such part of the said $1,000.00 note as remained unpaid at the time when defendant received notice or knowledge of the assignment of the said $1,000.00 note."
Held:
1. When the record does not show what was the ruling of the court below upon a demurrer, the Appellate Court will consider that the demurrer was overruled.
2. The instruction as given by the court was calculated to mislead the jury and therefore erroneous.
3. Where before a note is due, a part of the debt is paid, and a new note executed for the residue, by the debtor, and an express agreement made between the parties that the old note shall be surrendered, such agreement is founded upon valuable consideration, and extinguishes the old note, and no suit can be maintained thereon.
4.-- Quaere --Would the case be changed, were the payment, new note and agreement made, after the old note became due?
Supersedeas to a judgment of the circuit court of Marion county, rendered on the 30th day of April, 1874, in an action in debt, in which Theodore S. Bantz & Co. suing as assignees of Jonathan H. Haymond, were plaintiffs, and Philip S. Basnett was defendant, allowed upon the petition of said defendant.
Hon. C. S. Lewis, late Judge of the second judicial circuit, rendered the judgment complained of.
Moore, Judge, furnishes the following statement of the case:
The plaintiffs as assignees of Jonathan H. Haymond brought an action of debt in the circuit court of Marion county against the defendant, Basnett, to recover the amount of a certain promissory note, made by said Basnett, payable six months after date, to the order of J. H. Haymond, for the sum of $1,000.00, dated October 1st, 1860; the said plaintiffs claiming to be the assignees of said note by assignment from said Haymond. The defendant demurred to the declaration, and pleaded payment to the said Haymond of the said note, before its maturity and before notice to him of its assignment to said plaintiffs; and issue being joined a trial was had before the said circuit court by jury. The verdict of the jury was against defendant in favor of plaintiffs, $408.00, and interest $310.80, aggregating the sum of $718.80, of which sum the plaintiffs remitted $8.00, and the court after overruling the defendant's motion to set aside the verdict of the jury, gave judgment for the plaintiffs against the defendant for the residue, viz: for the sum of $710.80, with interest thereon from April 20th, 1874, until paid, and costs.
Upon the trial the deposition of Theodore S. Bantz, one of the plaintiffs, and senior partner of T. S. Bantz & Co., was introduced, to the reading of which as evidence the defendant objected, because it did not appear that notice of the taking thereof was served on the defendant. And he further excepted to the reading of said deposition, or so much thereof as relates to any communications made through Jonathan H. Haymond to said Theodore Bantz & Co., tending to charge said defendant with notice of the assignment of the note mentioned and sued on. The court directed the jury to disregard so much of said deposition as consists of, or relates to communications made through Jonathan H. Haymond to said Theodore S. Bantz & Co., tending to charge said defendant with notice of the assignment of the $1,000.00 note mentioned in the declaration, and on which this suit was brought.
The other part of the deposition was substantially as follows: Witness first saw the note of $1,000.00 in their store, in Baltimore, to the best of his recollection, " in the fall or winter of 1860, or probably the first part of 1861; J. H. Haymond was in the store of Theodore S. Bantz & Co., at the time, and exhibited the note" to witness. Haymond was largely indebted to them at the time for money loaned him by the firm, and he proposed to assign the note of P. S. Basnett for $1,000.00 to the firm as part payment of his indebtedness to the firm; T. S. Bantz & Co., agreed to take the note, and gave Haymond credit for the amount on his account. Since that time the note had never been in Haymond's possession. The note was sent to the Fairmont bank, for collection February 13, 1861; and was there March 29, 1861, as the property of Theodore S. Bantz & Co. The firm had not received the amount of said note from Basnett, nor from any other person, except the following sums, to-wit:
| 1861. |
| May 20.--Received | $150.00 |
| Discount off 10 per cent. depreciated currency | 15.00 |
| $135.00 |
| 1862. |
| March 5.--Received | $ 70.00 |
| $205.00 |
A note or postscript to a letter addressed to the cashier of the Fairmont bank by the said firm, of April 1, 1874, states, " The proposition is to pay cash $600.00 to you, note at four months, drawn by P. S. Basnett, endorsed, by J. H. Haymond, which was sent us dated March 29, 1861, for $408.00 being interest included."
The note was not paid to the bank. The plaintiff gave in evidence the said $1,000.00 note, endorsed by said Haymond.
The defendant on his part introduced the deposition of William P. Thompson, who substantially testified that he was acquainted with both Haymond and Basnett, and was their counsel in almost all their legal business; that the receipt of J. H. Haymond to said Basnett, filed with the defendant's plea, was in his (said witness's), handwriting, and was signed by Haymond in his presence at witness's office in Fairmont, and was as it states, in settlement of a note previously given by Basnett to Haymond; witness prepared all the papers in reference to the settlement; before these papers were completed, Basnett wanted the original note; and witness's impression is, Haymond left the office for the purpose of getting the original note; after some time he returned without it, stating that he had left it along with other papers, in Baltimore, and would get and bring it out and leave it with witness for Basnett; he did not leave the original note with witness after that.
Basnett had that settlement with Haymond in the usual course of business. As to how much of the original note was settled in money, what was the amount of the new note mentioned in the receipt, and when due, witness could only speak as the receipt shows; his recollection is, that he counted the money, prepared the note, and then wrote said receipt to correspond with the facts, but cannot at this late day recall the amount of cash paid, the amount of the new note, or when it was due, nor has he any knowledge whether the new note was paid or not. Why witness inserted in the receipt that the said note was in Baltimore, meaning the original note, and then erased the same, witness's impression was that, Haymond was in doubt whether the original note was in Fairmont among his papers, or in Baltimore, but could give no other explanation why those words were inserted and then erased, & c. The defendant testified in his own behalf, that he settled said promissory note of $1,000.00 with Jonathan H. Haymond, the original holder thereof, at Fairmont, the place of residence of said Haymond, before he had notice or knowledge that the said promissory note had been assigned; that said settlement was made in the law office of William P. Thompson, on the day of the date of the receipt filed with the pleas in this case and referred to in the deposition of William P. Thompson; that at said time said Haymond proposed to surrender said promissory note of $1,000.00 to defendant, and defendant demanded that it be surrendered to him, and said Haymond made search for the said note among his papers in his office at that time for the purpose of surrendering it to defendant, but failed to find it, and agreed with defendant thereupon that said promissory note should be surrendered to defendant as soon as he, the said Haymond, could find it, or at an early day, said Haymond finally saying that he had probably left said note in Baltimore with some other papers which he had left there.
And the defendant further testified that he had never...
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Baker v. The Central National Bank of Ellsworth
... ... (Stokes v ... Stokes, 34 N.Y. Supr. Ct., App. Div., 423, 54 N.Y.S ... 319; Cleveland v. Rothschild, 132 Mich. 625, 94 N.W ... 184; Bantz & Co. v. Basnett, 12 W.Va. 772; ... Walters et al. v. Walters, 73 Ind. 425; 27 Cyc ... 1413, 1414.) ... In ... instruction No. 4 the ... ...