Robb v. Parker

• Decision Date: 31 December 1871
• Citation: 51 Tenn. 58
• Parties: J. M. Robb, Pl'tiff in Error v. Susan Parker, Adm'x.
• Court: Tennessee Supreme Court

51 Tenn. 58

J. M. Robb, Pl'tiff in Error

v.Susan Parker, Adm'x.

Supreme Court of Tennessee.

December Term, 1871.

FROM SUMNER.

Circuit Court. Demurrer disposed of, and trial had at June Special Term, 1867, before W. S. MUNDAY, Special J.

Allen and Head & Son, for plaintiffs in error:

1. Illegality in part avoids the note in toto; Story on Prom. Notes, sec. 189; Thayer v. Rock, 13 Wend., 53; Turner v. Odom, 3 Col., 455; Crawford v. Morrell, 8 J. R., 256; 3 Bibb, Ky., R., 500; 2 Metc., Ky., 163; Swan v. Chandler, 8 B. Mon., 98;9 B. Mon., 90;4 Hum., 200;3 Head, 725; Ib., 298; 1 Sneed, 376; 1 Parson's on Con., 456.

2. The law implies a promise only, in the absence of express contract. Chitty on Con., 25; 2 Greenl. Ev. sec. 103; 2 Term, Rep., 105; 6 Term, R., 325.

3. A plaintiff can not abandon a special contract, and sue upon the common counts. The remedy must be upon the contract. Clark v. Smith, 14 J. R., 326; Jennings v. Camp, 13 J. R., 94; 2 Greenl. on Ev., sec. 104.

4. Taking a bill single in consideration of a simple contract, extinguishes or merges the simple contract, and no action can be maintained founded upon that consideration. 3 Marshall, 82; 3 B. Mon., Ky., R., 179.

5. If an old contract was evidenced by note, or bill, and a new contract made, and the old note given up, the old contract is gone, and can not be sued on. The only remedy is upon the new contract. 2 Parsons on Con., 681, note f.; 10 B. Mon., 300.

6. If it is the intention of the parties to a contract, that a note taken is to be received in payment or extinguishment of a previous note, then no suit can be maintained on the old note. This intention may be gathered from the circumstances, by express words, or by necessary implication, and the delivery of the note raises a presumption to this effect. Story on Prom. Notes, sec. 104; 2 Parsons on Con., 624; Ib. 681, note f., Babcock v. Hawkins, 23 Vermont, Rep., 561.

J. J. Turner, for the defendants in error, insisted that Potts v. Gray, 3 Col., 498, has no application to this case. There was but one count to the declaration, and the fact was not disputed, that a part of the note was Confederate money; but here Parker denied the defense as to Confederate money, and the jury found that issue in his favor, so that point will not avail Robb unless he convinces the Court that there was Confederate money in the note. But that case is overruled by Turney v. Crowder, MS., Nashv., 1871.

Even had the Court erred in permitting the amended counts to be filed, yet as the jury did not find a verdict on those counts, and as the verdict stands alone upon the declaration as originally filed, Robb can not now take advantage of the error, unless he shows affirmatively that said counts injured his defense, or strengthened the plaintiff's cause of action. 2 Head, 116; 2 Meigs' Digest, 775-6. Sanders v. Young, 1 Head, 219;Clark v. Bell, 8 Hum., 26; Peck., 194; 2 Yer., 329;6 Yer., 491.

The Court will not reverse, except for errors affecting the merits of the case. Code, 4516, McBee v. Petty, 3 Col., 118.

“Illegal contracts may be abandoned, and the consideration sued on.” Chitty, Contr., 600, note.

“In gaming contracts, when the impending event is undecided, the owner may disaffirm the contract, and give notice and recover his property.” 3 Head, 233;6 Yer., 288;4 Hum., 131.

When a note is illegal, or is in contravention of some rule of law, it may be abandoned, and a count sustained on the consideration. Kennel v. Muncey, Peck, 273-84; Meigs' Digest, sec. 227, bottom of page 129.

“Every satisfaction amounts, in point of law, to an extinguishment of the debt; but every extinguishment is not a satisfaction.” Story on Promissory Notes, sec. 403; Nichol v. Thompson, 1 Yer., 151;Parker v. Cowan, 1 Heis., 518. In the case of Craighead v. The State Bank, Meigs' R., 201, 2, the notes had been cancelled by the Bank, yet a recovery was had on the consideration, as will be seen by the facts of the case. The syllabus does not report the case correctly.

A note is not a payment of a debt or former note. It does not extinguish the former consideration, and the creditor may waive the note and sue on the consideration. To make the new note a satisfaction of the old note, the proof must be clear that it was so taken. Edwards on Bills and Promissory Notes, 181, 185, 546. Story on Promissory Notes, secs. 104, 105, 404, 438. 2 Clinton's New York Digest, p. 2466, sec. 306.

See also 1 Cranch. 181;6 Cranch, 253, 264; 3 How., Rep., 1 John. R., 34; 10 John., 104; 15 John., 247-24; 5 John., 68; 2 John.'s Cases; 3 John.'s Cases, 71; 8 John., 389; 5 Wend., 85; 7 John., 311; 1 Cow., 290;18 Pick., 243, 253;4 Mass., 336;6 Mass., 143;8 Pick., 122, 522;8 Barb., 408;11 Pick., 125;16 Ill., 161; 2 Verm., 287; 4 Verm., 549; 13 Verm., 452; 5 Term R., 513; 6 Term R., 52; 7 Term R., 546.

DEADERICK, J., delivered the opinion of the Court.

Suit was brought by summons to October Term, 1865, of the Circuit Court of Sumner County, by defendant in error against plaintiff in error, to recover $4,000, alleged to be due from him to her intestate.

The declaration, filed at October Term, 1865, which contains but one count, is in the form prescribed by the Code, and is upon a note made by defendant below, on 28th January, 1862, for $4,000, and payable in twelve months to Wm. Parker, the intestate of plaintiff below.

Profert is made of the note and of the letters of administration by the plaintiff below.

To this declaration defendant below pleaded.

1st. That the note was given for Confederate money, which was issued in violation of law, etc.

2d. That the note was executed without any consideration. 3d. That the note was executed for Confederate money loaned defendant, to be returned if not used, with an averment that he did not use the money, and returned it, and paid off said note; and that the plaintiff then requested defendant to take charge of said Confederate money, and invest it for him, agreeing not to hold defendant responsible if it was lost, and that the said money was lost without any default or neglect of defendant.

4th. That defendant paid the note before the commencement of this suit.

Issue was taken by plaintiff upon all of said pleas. Subsequently, the plaintiff, by leave of the Court, filed an amended declaration, containing five counts.

1st Count is for $6,000 due by account, 28th January, 1862.

2d, For $6,000 money loaned to, paid for, and had and received by the plaintiff.

3d, For $6,000 money loaned in different sums, and at different times, making an aggregate of $4,000 due on 28th January, 1862, which, with the interest thereon, remains unpaid.

4th, For $6,000, for $1,200 of the notes of the Bank of Tennessee, loaned 28th January, 1862, and for $800 in other current bank notes, loaned 28th January, 1862; a note for $1,800 executed by defendant to intestate -- day of ____, 1860, all of which sums, with interest, amounted on 28th January, 1862, to $4,000--the said note being surrendered to defendant, but not paid off; nor were said sums loaned paid off, but were evidenced by a note of $4,000, made 28th January, 1862, due in twelve months, bearing interest from date, and of which profert is made; but the same is not sued on in this count, but tendered to defendant.

5th and last count is for money loaned at different times by intestate, and for a note of $1,800 due him, which have not been paid by defendant, and amount to the sum of $4,000, which sum is evidenced by a paper writing, signed by defendant, 28th January, 1862, which, plaintiff avers her readiness to deliver to defendant, or to the Court for cancellation, upon the payment of the $4,000 and interest thereon, from 28th January, 1862.

The defendant demurred to the 4th and 5th pleas.

The demurrer being overruled by the Court, the defendant pleaded to 1st, 2d and 5th counts of the declaration, a general denial. To the several counts he pleaded that the money loaned him was Confederate money, for which he executed the note made profert of in the original declaration.

Defendant further pleaded that for the $4,000 loaned him in Confederate money, he executed his note for $4,000, which was paid; the money then was placed in his hands to be used for plaintiff's intestate to the best advantage, at the risk of defendant, and that the money was lost without any fault on his part.

Defendant further pleaded to the amended declaration, that he owed intestate $1,500, due in 1860; that on 28th January, 1862, he, intestate, loaned defendant in Confederate notes enough, with the $1,500 and interest there on, to make $4,000, upon which he, defendant, executed his note for $4,000, which was accepted in extinguishment of the pre-existing debt of $1,500, the note for which, was surrendered, and for the Confederate notes loaned; and that said $4,000 note is illegal and void.

The last plea is, that defendant has paid the several sums mentioned in the amended declaration.

Upon all of which pleas, issue was taken by plaintiff.

The cause was submitted to a jury at the Special June Term, 1867, and in their verdict they say that they find the issue joined on the count in the original declaration in favor of the plaintiff; and that they find the other issues in favor of defendant; and that defendant owes the plaintiff $4,000,” etc.

Motions in arrest of judgment and a new trial were entered by defendant, which motions, it appears from the record, were continued over to the regular term.

At the next term succeeding the trial of the cause, being the regular term of the Court, the motions entered, were, upon argument, severally discharged; thereupon defendant prayed an appeal, tendered a bill of exceptions, which was signed and sealed by the Judge trying the cause, and gave bond with security for his appeal, and the cause is here for revision.

It has been held by this Court in several cases, that a bill of exceptions made and signed at a term of the Court subsequent to that at which the trial of the...