Overlock v. Hills , 8 Me. 383 ( 1832 )

Parris J.

delivered the opinion of the Court, at the ensuing term in Kennebec.

The defendant in April, 1829, when he received the Robbins note, promised to take all reasonable means to collect it, and to account for what might be collected, after paying the costs, on a note given him by the plaintiff and Matthews.

The Robbins note was then due, and Robbins, himself, was at Miramichi, in the Province of New Brunswick, where he had resided seven or eight years.

In March, 1830, the defendant, having the Robbins note in his possession, made a further agreement, as found by the jury, that he would deliver up that note on receiving another signed by Harding and Cutler, which, as appears by the testimony of Cutler reported in the case, was procured by Matthews and sent to the defendant some time in April, 1830, and was by him received in pursuance of the latter agreement.

The defendant having accepted Harding and Cutler's note in payment of that which he had against the plaintiff arid Matthews, ought not to be permitted longer to hold the Robbins note, under the original agreement. That was manifestly received as collateral security, and when the principal debt was discharged, the collateral or pledge ought clearly to be given up, independant of any agreement to that effect But lhe jury have settled the fact, that there was such an agreement. The agreement was in March; — the condition, upon which it was to be returned, was performed and accepted in April, and from that time the defendant’s lien upon the Robbins note ceased, and he held it subject to the demand of the plaintiff.

The argument, that the defendant was liable on his promise to take all reasonable means to collect the Robbins note, and therefore, that he had a right to control it until his receipt was tendered, is inconsistent with his preceding conduct, as well as his agreement found by the jury. He received the note in Jlpril, 1829, and then made the written agreement under which he attempts to shield himself. After keeping it for nearly a year, without using any means to collect it, he agrees to return it, upon receiving other satisfactory security. That is procured, he accepts it, and immediately, according to his own account, begins, for the first time, to “ take reasonable means to collect” the Robbins note, by sending it to Miramichi. His interest in that note had ceased, the debt for which it was pledged having been paid; he had agreed to return it; and if, after this, by sending it away, he put it out of his power to return it, he did what his original agreement did not, at that time require; what his subsequent agreement forbid; and what the law will not justify.

Judgment affirmed.