Ferdon v. Jones , 2 E.D. Smith 106 ( 1853 )

By the Court. Ingraham, First J.

The claim of the plaintiff arises under the mechanics’ lien law. The defendants were owners of lots on Thirty-fifth-street, and the bricks furnished by the plaintiff were delivered at said premises in November, 1851, amounting in number to 200,000. On the 12th of January, 1852, the necessary papers to create a lien were filed with the county clerk.

On the part of the defence it was alleged, that the plaintiff agreed to furnish 400,000 bricks, while he had only delivered half that number, and refused' to deliver the residue, and that the defendants had paid for the whole number, by the note of one Bedell, for $1,698.

Upon the trial of the cause, before the referee, it appeared that two hundred thousand bricks were delivered, as above stated, and their value was proved.

The defendants also proved that they had paid $150 for the hauling of the bricks. The plaintiff, on the trial, produced the note of Bedell for $1,698, and offered to return it to the defendants. They further proved the admission of the plaintiff, that he had taken the note from the defendants in payment for the bricks.

Bedell, the maker of the note, testified that he gave it to one Searls, who wanted it to pay Jones what he, Searls, owed him. That he, Bedell, gave the note upon the understanding that he was to have stock for it, from Searls, the next day, which was never transferred to him. Notice of the failure to transfer the stock' was repeatedly given to Jones, who insisted that he had given value for the note.

The referee found for the defendants, and found specially that the plaintiff contracted to furnish 400,000 bricks for the note, and had only delivered half the number.

Upon a question of fact, such as this is, where the evidence is sufficient to sustain the finding of the referee, we would not disturb the report, although we might differ in opinion with the referee.

The admission of the plaintiff, as proved in this case, if it stood alone, would sustain the report. Whether the other testimony was sufficient to overbalance that admission, was a question for the referee to decide.

Nor can I come to the conclusion that the referee has erred upon the facts. The evidence, I think, sufficiently establishes that the agreement was to give the note in payment for the bricks, and this agreement was made before the delivery took place.

The cases cited, on behalf of the plaintiff, to show that he could return the note and recover the value of the bricks, are cases where a note was given for a precedent debt, and in which it was holden that such debt was not paid unless there was an express agreement to receive the note in payment. (1 Cow. 306; 7 J. R. 311; 7 Hill, 130; 5 Barb. S. C. R. 408, and others.)

But such a rule is not applicable to an express agreement to sell goods for a particular note. In such case the delivery of the note is .a full payment of the debt, and whether the note is afterwards paid or not, the vendor cannot rescind his contract by returning the note and claiming the value of the goods sold.

It may be material to this case to decide whether, in the hands of Jones, the note was founded on a sufficient consideration. It was given with the knowledge of all the parties without consideration at the time, but upon a promise to give stock for it at a future day. If Searls was indebted to Jones, and the note was made to enable Searls to pay Jones, then it was applied as the parties agreed, and the default of S'earls in not furnishing the stock would not render void the note in the hands of Jones. The plaintiff proved, by Bedell, the declaration of Jones, that he had given a valuable consideration for it; and as there is no evidence to contradict this statement, it cannot be considered as a note without consideration. In addition to this, Bedell stated that he told Jones he would not object to paying him the note, as he had given a consideration therefor. No fraud was perpetrated on the plaintiff, because Bedell says he had told Ferdon of this before the brick transaction.

I am of opinion that the referee’s report was correct, and the judgment should be affirmed.

Judgment affirmed.