Slade v. Mutrie

• Decision Date: 25 February 1892
• Citation: 30 N.E. 168,156 Mass. 19
• Parties: SLADE et al. v. MUTRIE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

156 Mass. 19

30 N.E. 168

SLADE et al. v. MUTRIE.

Supreme Judicial Court of Massachusetts, Suffolk.

February 25, 1892

COUNSEL

Henry S. Milton, for plaintiffs.

George L. Huntress and Homer Albers, for defendant.

OPINION

FIELD, C.J.

The counsel for the defendant concedes that by the law of this commonwealth the payment of a part of the debt after the whole debt has become payable is not a sufficient consideration to support a promise not under seal to discharge the remainder of the debt. Tyler v. Association, 145 Mass. 134, 137, 13 N.E. 360; Lathrop v. Page, 129 Mass. 19; Grinnell v. Spink, 128 Mass. 25; Potter v. Green, 6 Allen, 442; Harriman v Harriman, 12 Gray, 341; Brooks v. White, 2 Metc. (Mass.) 283; Foakes v. Beer, L.R. 9 App.Cas. 605. The judge ruled that, "if the plaintiffs, at the time they received the sum of one hundred and twenty-five dollars from the defendant, and gave him a receipt in full of all demands therefor, surrendered to the defendant the note in suit with the intention that the same should be canceled, and that the debt thereby evidenced should be extinguished, and intended to give to the defendant the balance of the debt, and that the payment made was to be in full for said debt, then the plaintiffs cannot recover on the note." The jury, in returning a general verdict for the defendant, must have found that the note was surrendered by the plaintiffs to the defendant that it might be canceled, and that the plaintiffs intended, by delivering the note to the defendant, to give him the note, and discharge the remainder of the debt. For certain purposes a bill of exchange or a promissory note is regarded in this commonwealth not merely as evidence of a debt, but as the debt itself. They may be the subject of a gift, but to constitute a gift there must be a delivery by the owner to the donee, with the intention of passing the title. Grover v. Grover, 24 Pick. 261; Sessions v. Moseley, 4 Cush. 87; Bates v. Kempton, 7 Gray, 382; Chase v. Redding, 13 Gray, 418. See Sheedy v. Roach, 124 Mass. 472; Pierce v. Bank, 129 Mass. 425; Taft v. Bowker, 132 Mass. 277; McCann v. Randall, 147 Mass. 81, 17 N.E. 75; Cochrane v. Moore, 25 Q.B.Div. 57; Seminary v. Robbins, (Ind.Sup.) 27 N.E. 341. It follows from this that the delivery of a promissory note by the holder to the maker, with the intention of transferring to him the title to the note, is an extinguishment of the note, and a discharge of the obligation to pay it. Hale v. Rice, 124 Mass. 292; Stewart v. Hidden, 13 Minn. 43, (Gil. 29;) Ellsworth v. Fogg, 35 Vt. 355; Vanderbeck v. Vanderbeck, 30 N.J.Eq. 265; Jaffray v. Davis, 124 N.Y. 164, 170, 26 N.E. 351. Exceptions overruled.