Bradway v. Groenendyke

• Decision Date: 28 November 1899
• Docket Number: 18,551
• Citation: 55 N.E. 434,153 Ind. 508
• Parties: Bradway v. Groenendyke et al
• Court: Indiana Supreme Court

55 N.E. 434

153 Ind. 508

Bradway v. Groenendyke et al

No. 18,551

Supreme Court of Indiana

November 28, 1899

From the Wayne Circuit Court.

Reversed.

M. E Forkner and T. J. Study, for appellant.

Eugene Bundy and John M. Morris, for appellees.

OPINION

Baker, J.

Complaint in two paragraphs, (1) to foreclose a laborer's lien, and (2) to set aside conveyances made by appellee James Groenendyke to certain co-appellees to defraud appellant. Answer of denial and payment. Special findings of facts and conclusions of law. Exceptions to conclusions by appellant. Motions for a venire de novo and for a new trial overruled.

As appellant recovered part of his debt and established his lien upon the factory and land, the material controversy involves only the question of payment. Concerning this, the special finding shows that appellee James Groenendyke (hereafter called appellee) owned and operated a factory from 1889 to 1896; that during that time appellant worked continuously as a laborer in appellee's factory under employment by appellee; that on January 1, 1893, an accounting showed that appellee owed appellant for labor $ 996.22; that on that day appellee executed notes for that amount payable to the order of appellant's wife at a bank in this State and delivered them to appellant; that there was no expressed intention or agreement between the parties as to the effect the delivery of the notes should have; that the notes were never delivered by appellant to his wife, but were retained by appellant until after appellee conveyed his property in 1896; that appellee did not know that the notes were not delivered by appellant to his wife until after the conveyances were made that when the conveyances were made appellant had earned as wages since January 1, 1893, $ 1,195.37, and appellee had paid appellant $ 1,029.31. In his complaint, appellant sought to recover on his account for wages from 1889 to 1896 and brought the notes into court for cancelation. The question is, Does the finding support the conclusion and judgment that all of appellant's claim had been paid except $ 166.06?

Ordinarily, a promise to pay a debt is not a payment of the debt. But payment is a question of intention between the creditor and debtor; and there is no reason why a promissory note may not be given and accepted as payment, as well as other kinds of property that are not money. "The word 'payment' is not a technical term; it has been imported into law proceedings from the exchange and not from law treatises." 2 Greenleaf on Ev., § 516. In this State, it is firmly established that a debtor's giving to his creditor a promissory note, not governed by the law merchant, affords no evidence that it was offered and accepted as payment; and that the giving of a promissory note, governed by the law merchant, is prima facie evidence of payment, which must be accepted as conclusive in the absence of any evidence that such was not the intention of the parties. Maxwell v. Day, 45 Ind 509; Keller v. Boatman, 49 Ind. 104; White v. Carlton, 52 Ind. 371; Alford v. Baker, 53 Ind. 279; Hill v. Sloan, 59 Ind. 181; Schneider v. Kolthoff, 59 Ind. 568; Smith v. Bettger, 68 Ind. 254, 34 Am. Rep. 256; Teal v. Spangler, 72 Ind. 380; Krutsinger v. Brown, 72 Ind. 466; Nixon v. Beard, 111 Ind. 137, 12 N.E. 131; Sutton v. Baldwin, 146 Ind. 361.

The first case, Maxwell v. Day, supra, follows a number of Massachusetts decisions. In Curtis v. Hubbard, 9 Met. 322, that court by Shaw, C. J., said that the rule "is founded on the consideration that, when a note is given for goods, even if it is not negotiated, it is equally convenient to the creditor (and generally more so) to sue on the note, as on the original consideration, and so there is no reason for considering the original simple contract as still subsisting and in force; and therefore a presumption arises that it was intended by the parties that the note should be deemed a satisfaction. But this is a presumption of fact, which may be rebutted by evidence showing that it was not so intended; and the fact that such presumption would deprive the party who takes the note of a substantial benefit, has a strong tendency to show that it was not so intended." In Quimby v. Durgin, 148 Mass. 104, 19 N.E. 14, it was held that "the fact that, at the time the note was given, the petitioner had a lien and a claim against the respondent for all that was then due him, was a circumstance bearing upon the question whether he accepted the note as payment." In Davis v. Parsons, 157 Mass. 584, 32 N.E. 1117, it was said that "if the transaction might not have been found to be a mere accommodation, the circumstance that he was secured by a lien which would pro tanto be extinguished if the note were payment, warrants the finding that it was not so intended." In The Kimball, 70 U.S. 37, 3 Wall. 37, 18 L.Ed. 50, one of the questions was whether or not the owner of the vessel had accepted the charterer's negotiable note as payment of the freight-money and thereby had lost his lien on the cargo. The case originated in the District Court for Massachusetts. The court, by Mr. Justice Field, said: "The rule in Massachusetts is an exception to the general law; but even there, as we have said, the presumption that the note was given in satisfaction of the debt may be repelled and controlled by evidence that such was not the intention of the parties, and this evidence may arise from the general nature of the transaction, as well as from...