Lang v. Gage

• Decision Date: 26 July 1889
• Citation: 18 A. 795,65 N.H. 173
• Parties: LANG v. GAGE.
• Court: New Hampshire Supreme Court

18 A. 795

65 N.H. 173

LANG

v. GAGE.

Supreme Court of New Hampshire. Merrimack.

July 26, 1889.

Reserved case from Merrimack county.

Assumpsit on the promissory note of C. & J. C. Gage and the defendant for $2,000, dated December 25, 1874, and payable to the plaintiff on demand. Writ dated September 14, 1888. Plea, the statute of limitations. Replication, a new promise. On the notes are the following indorsements: October 12, 1875, one year's interest; January 3, 1877, one year's interest; December 21, 1877, one year's interest; December 23, 1878, one year's interest; "October 5, 1881, received of Penacook Savings Bank, $150; January 20, 1882, received of Penacook Savings Bank, $150; January 9, 1883, received on the within note, $100; November 28, 1883, received of Penacook Savings Bank, $125; December 2, 1884, received of S. F. Brown, assignee, $70; December 2, 1885, received of assignee of Penacook Savings Bank, $1,000, paid in accordance with the report of the commissioner." All the indorsements after 1878 (except that of November 28, 1883) were made by the defendant, and the money was paid by him to the plaintiff. He was, and the plaintiff knew that he was, a surety for C. & J. C. Gage. May 19, 1877, C. & J. C. Gage gave the defendant a mortgage to indemnify him for his liability as surety on a large number of notes, including the note in suit, and to secure their payment. June 25, 1877, the defendant assigned the mortgage to the Penacook Savings Bank, which then held all the secured notes except the plaintiff's note and one other, "to be held by said bank for the same purposes, and to secure the same debts and liabilities, for which the same was made, and for which I have hitherto held the same." The bank foreclosed the mortgage, sold the property, and applied the proceeds proportionately to the payment of the notes secured by it. All the moneys paid by the defendant to the plaintiff were the proceeds of this property. The defendant was an officer of the bank, and in that capacity paid the money to the plaintiff. Whether the plaintiff knew the source from which the money paid to her was obtained, and that the defendant in making the payments was acting in behalf of and as an officer of the bank, were questions in dispute. The court ruled that, whether she knew these facts or not, the payments were evidence competent to be considered by the jury, as tending to show a new promise by the defendant, and that on this evidence alone the jury might find such promise. The defendant excepted, claiming that they were not competent evidence in either case. If the ruling is correct, there is to be judgment for the plaintiff; otherwise the case is to stand for trial, Without prejudice to either party from any statement of fact herein contained.

Leach & Stevens, for plaintiff. W. G. Buxton and Bingham, Mitchell & Fletcher, for defendant.

CLARK, J. An unqualified voluntary payment of money is a recognition of an existing liability by the party making it, and the ground upon which a payment by the debtor furnishes evidence of a new...