Combination Steel & Iron Co. v. St. Paul City Ry. Co.

• Decision Date: 01 September 1891
• Citation: 47 Minn. 207
• Parties: COMBINATION STEEL & IRON COMPANY <I>vs.</I> ST. PAUL CITY RAILWAY COMPANY, impleaded, etc.
• Court: Minnesota Supreme Court

47 Minn. 207

COMBINATION STEEL & IRON COMPANYvs.

ST. PAUL CITY RAILWAY COMPANY, impleaded, etc.

Supreme Court of Minnesota.

September 1, 1891.

Appeal by plaintiff from an order of the district court for Ramsey county, Brill, J., presiding, refusing a new trial after judgment ordered for defendant in an action to enforce against defendant's railway a lien for material (steel rails) to the amount of $3,349.57, furnished by plaintiff to the New York Cable Railway Construction Company for use, and used by it, in the construction of one of defendant's lines of railway. The answer pleaded, among other things, payment by the railway construction company to the plaintiff.

Eller & How, for appellant.

Henry J. Horn, for respondent.

VANDERBURGH, J.

The plaintiff sold and delivered to the New York Cable Construction Company a certain quantity of steel rails used by the latter in the construction of defendant's railway, and claims a lien for a balance due, upon the works and structures of the railway company. The material in question was all delivered and used by the defendant, and was settled for by the construction company, and receipted for in general terms by the plaintiff. At the trial the receipts were introduced, and thereupon it was shown that, instead of being paid in money, the plaintiff received the note of the construction company for $3,349.57, payable in 35 days, and dated October 3, 1887, with interest. It also appears that an action was brought by the plaintiff against the construction company in December, 1887, for damages (which were unliquidated) for its refusal to accept other rails tendered by plaintiff under the contract. The complaint recites, by way of explanation, that under the contract "all but 1,257 pieces have been delivered and paid for in cash or by note." It appears from the evidence that the construction company was short of money at the time the settlement by note was made, though the plaintiff expected to receive the money which was due them. The agent of that company, however, represented that it would have funds to pay the debt in 30 days, and for its accommodation the plaintiff consented to receive the note in question, running 35 days. It is not shown, and it will not be presumed, in the absence of further evidence, that the note was taken in absolute payment and discharge of the original indebtedness.

It is the well-settled common-law rule that the acceptance of a contract or security of equal degree is of itself no extinguishment of a prior debt, and the taking of a promissory...