Hilliard v. Bothell

• Decision Date: 11 March 1887
• Citation: 8 A. 826,64 N.H. 313
• Parties: HILLIARD v. BOTHELL.
• Court: New Hampshire Supreme Court

8 A. 826

64 N.H. 313

HILLIARD

v. BOTHELL.¹

Supreme Court of New Hampshire.

March 11, 1887.

Reserved case from Coos county. Assumpsit. Facts found by a referee.

The writ is dated October 6, 1884. September 13, 1884, the plaintiff loaned the defendant a bank-cheek for $235, witli the understanding and agreement that the defendant should, on the following Wednesday, deposit the same amount of money in the bank at Littleton, on which bank the plaintiff drew the check. September 30th he loaned the defendant another check for $225, drawn by him on the same bank, and under substantially the same circumstances as stated above in regard to the first check. The defendant told the plaintiff at this time that he had paid the amount of the first check into the bank. The plaintiff's deposit at the bank was more than sufficient to pay the first check at the time it was drawn, but he had not enough to his credit to pay both checks, or either of them, when they were presented to the bank for payment, and both were protested. The defendant deposited no money in the bank to the plaintiff's credit, as he agreed to do, and the plaintiff was obliged to pay the amount of the checks to the rightful owners of them; but he did not do this until some time after he brought this suit. Two items of the plaintiff's specification, amounting to $10, were due at the time of the trial, but did not accrue until after this suit was brought. Rejecting these items, the referee found due the plaintiff, on account of the checks, the sum of $538.08, if he is entitled to recover on the above facts.

J. H. Dudley and Aldrich & Hemick, for plaintiff.

Drew & Jordan and W. & H. Hey wood, for defendant.

BLODGETT, J. There can be no recovery upon the two items, amounting to $10, which did not become due until after the action was commenced. An action does not lie until a cause of action has accrued. As to the checks, the case stands as it would if the plaintiff had loaned the defendant a like amount of money. Having treated and used the checks as money, the defendant is chargeable for them as money. Matthewson v. Powder Works, 44 N. H. 289, 291, 292, and cases cited; 4 Wait, Act. & Def. 470, 472, 474. In this view, it is immaterial whether the plaintiff paid the checks before or after suit. They were simply evidence of the defendant's indebtedness to him, which might be procured after suit as well as before, without in any way affecting the rights of either party. The test is not the time when...