Berry v. Griffin

Eccleston, J., delivered the opinion of this court. This appeal has been taken for the purpose of reversing the judgment below, upon the ground that the court erred in refusing to give the following instruction at the instance of the defendant: “That if the jury find from the evidence in this cause, that the plaintiffs accepted or received the note of said James B. Brooks in settlement for or in payment, of said account sued on, that then the said defendant, is entitled to a credit for the amount thereof, although the drawer and first endorser were applicants for the benefit of the insolvent laws, the first on the ninth day of November 1847, and the latter on the 31st of December 1846, after the said note matured, and' obtained final discharges.” ³⁰ It is not at all necessary to decide whether there is or is not sufficient evidence to sustain the position set forth in the prayer, because there was no error in refusing it, no matter how strong the proof may be. The legal proposition asserted is, that if the jury believe the plaintiffs either accepted or received the note of Brooks, either in settlement for, or in payment of, said account sued on, then the defendant is entitled to a credit for the amount of the note, notwithstanding the subsequent insolvency of the maker and first endorser. The alternative form of the prayer clearly assumes it to be sufficient to discharge the defendant from responsibility, on the account, to the amount of Brooks’ note, provided the jury should believe the plaintiffs received the note in payment of the account.

Now suppose the evidence shows, beyond doubt, that the plaintiffs did so receive it, would that exonerate the defendant, to the extent of the note, from his original liability upon the account, notwithstanding the insolvency of the parties upon the note? It surely would not if the decisions in Glenn vs. Smith, 2 G. & J., 493, Crawford vs. Berry, 6 G. & J., 71, 72 , and Yates vs. Donaldson, 5 Md. Rep., 396 , are to be considered as good law. In the first of those cases it will be seen, that at the foot of an account is the following receipt: “Received of Mrs. Ann Haslett, executrix of William W. Haslett, two promissory notes signed.by herself and endorsed by John W. Glenn &■ Co., in payment of the above account.” And yet, on page 512, we find the court, whilst speaking of this receipt, saying, “To give to the acceptance of a note the effect of an absolute payment, or extinguishment of a debt, a contract that it should be so, must be shown; an express agreement to receive it as payment and to run the risk of its being paid, which is not sufficiently done by the receipt in this case to justify us in saying, that the claims of John Heslip against the estate of William Haslett, was extinguished by his acceptance of Ann Haslett’s notes.” Prior to this remark Ch. J. Buchanan has referred to several cases showing that an acknowledgment of having accepted or received a note in payment of a prior indebtedness, will not extinguish the prior claim, unless such accepting or receiving js under an agree ³¹ uiem to take the