Creager v. Link

Le Grand, C. J., delivered the opinion of this court. This is an action on-a promissory note, instituted against the appellant, who pleaded non-assumpsit, and accord and satisfaction. There was no question as to the making-of the note; the whole defence rested on the’plea of accord and satisfaction. The facts which-it is important for us to notice may be stated thus: The appellant made his note in favor of the appellee, and failing to pay it at maturity, an action was instituted upon it, but before trial was had the parties made an arrangement, ²⁶⁵ by which the suit was entered “off" and “satisfied," and the aote, by order of the court, passed to the plaintiff in the action.

The present action was subsequently brought on the same note. The only witness examined in this case was Daniel Etzler, who testified, that on the 5th day of November 1852, the plaintiff and defendant appeared before him, and agreed that a promissory note of that date, and a mortgage bill of sale to secure its payment, (which are set out in the record,) “should be deposited in the hands of the witness, and that the plaintiff should deliver to witness the promissory note in the declaration mentioned, and that said papers should be delivered to plaintiff by witness so soon as the plaintiff should deliver to witness said promissory note, and the witness should after-wards deliver up to defendant the said promissory note to be cancelled; That the said papers, the promissory note of the 5th of November 1852, and mortgage, were in f all satisfaction to plaintiff of the promissory note in the declaration mentioned; That the defendant did deliver said papers, note and mortgage to witness in conformity with said agreement, and that it was then agreed between the said parties, that the plaintiff should forthwith obtain said note in the declaration mentioned and deliver it to witness for the use of defendant; That every thing was done by defendant which, according to said agreement, he was to do, and that nothing remained to be done on either part, except the delivery by the plaintiff to the witness of the promissory note in the declaration mentioned; That according to said agreement, witness held said papers, note and mortgage for the use of plaintiff, and that it was the duty of witness, by said agreement, to deliver the same to plaintiff so soon as Ike' plaintiff should deliver to him the note in the declaration." After this evidence was given by the defendant, the plaintiff offered to prove by the same witness, “that the plaintiff called on witness with the promissory note in the declaration mentioned, and offered to deliver up the same to witness, and demanded from witness the delivery to him, the plaintiff, of the said note and mortgage, and that iviiness refused to deliver ²⁶⁶ the same to plaintiff, because witness had been forbidden, by the defendant to do so on a different occasion, and after the said papers had been placed in witness hands, as aforesaid, and that the said papers” were still in the possession of ihe witness. To the introduction of this- and similar testimony on the part of the plaintiff the defendant objected, and this objection constitutes the first and second exceptions. In the view we have of the case, it is unimportant we should decide whether or not the ruling in regard to this offer of the plaintiff was correct.

On this state of facts several prayers were presented on behalf of the defendant, and one on the part of the plaintiff.. Those of the defendant were rejected, and that of the plaintiff granted. Without examining with particularity each of the propositions contained in these prayers, we will indicate the principles which, in our judgment, ought to have governed