Garnsey v. Allen , 27 Me. 366 ( 1847 )

The opinion of the Court was drawn up by

WhitmaN C. J.

The plaintiff, the second indorsee of a note, made by the defendant, negotiated it to R. C. Johnson, before it became due, who recovered judgment thereon against the plaintiff. It may be presumed, as no question appears to have been made about it at the trial, that the plaintiff had been duly notified of a demand made in due season, upon the maker, without obtaining payment of him; and so that judgment was properly obtained against the plaintiff for the amount due thereon. And evidence was introduced, and, though objected to, was admitted, that the plaintiff had paid Johnson, in part satisfaction of the execution, issued on said judgment, the sums of $11,39 in cash, and $100,00 in a right to a building transferred to Johnson, and that the execution and judgment were thereupon assigned to one Huckins, who received of the plaintiff the further sum of $52,30 thereon, and thereupon the plaintiff insists that he has a right to recover those sums of the defendant as money paid to his use.

The defendant’s ground of objection is, first, that the receipts entered on the execution, though the genuineness of the signatures is not questioned, were not evidence of payment, contending that there should have been other proof of those payments. But those receipts of Johnson and Huck-ins were good against them, so that they could not claim the amount of the payments, evidenced by them of the defendant; and while they would be good evidence for him, it would seem that they ought to be sufficient evidence, that the plaintiff had discharged so much of a debt, for which he was. but collaterally liable for the defendant.

It is next objected, that there should have been other evidence of the assignment to Huckins. It is not objected that the assignment is not in apt words for the purpose, nor that the signature of Johnson thereto is not genuine. It does not seem that further evidence of its execution could be required.

It is next insisted, that the plaintiff should be held to prove,, as this is an action for money paid to the defendant’s use, that the right to the building, transferred to Johnson, for which he had agreed to allow $100 on his execution, was worth that sum. With regard to this, it should be borne in mind that this was the defendant’s own debt; that it was due, originally, by note of hand to the plaintiff; that the plaintiff, if he had obtained the note, might have recovered the whole amount of it of the defendant, without his having a right to object, that the plaintiff had obtained it, if fairly done, for ever so trivial a consideration. It is sufficient for him, that, if the plaintiff recovers this sum of him he will be discharged of so much of a debt, against which he could not have defended himself, if the note were in the hands of the plaintiff, and had been put in suit against the ’defendant. And the same reasoning will suffice to show, that the offer, by the defendant, to show, that the right to the building was of little or no value, was properly rejected. The defendant had only to pay his own debt. It mattered not to whom, so that, upon doing it, he obtains a proper discharge from it; and according to the case of Butler v. Wright, 20 Johns. 367, it matters not that the claim upon him is for a part instead of the whole debt.

Finally, it appears to have been insisted, that the whole debt had been paid to Johnson, before the institution of the suit against the plaintiff; but it was admitted that the plaintiff was not informed, that any such payments had been made; or of any pretence of it till judgment therefor had been obtained against the plaintiff; and therefore the proof of any thing of the kind was ruled to be inadmissible, and we think with propriety. Exceptions overruled.