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J. G. (Jabez Gridley) Sutherland.

A treatise on the law of damages : embracing an elementary exposition of the law, and also its application to particular subjects of contract and tort (Volume 1) online

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a third brother for the settlement
of their affairs, declared that the
bond was the debt of B., the surety,
it was held that this agreement,
Whether subsequently acted upon or
not, was a binding accord between

A. and B. Cartwright v. Cooke, 3

B. & Ad. 701. Hills v. Mesnard, 10
Q. B. 260, is in principle not unlike
Eaves v. Henderson, supra. The ac-
tion was by payees against acceptors
of a bill. The defendants became
acceptors for the accommodation
of one Hundle, and the plaintiffs,
the payees, agreed to appropri-
ate certain moneys which they
expected to receive in discharge of
the bill. They subsequently received
the money, and the court held it a
payment of the bill pro tanto. Lord
Denman, C. J., says: It was 'compe-
tent for the parties to agree before-
hand that the money should be
specifically applied to the discharge
of the liability on the bill pro tanto.
'And it seems to be the good sense
of the transaction to treat it as so
much money paid to the plaintiffs
by Hundle on their account and as
their agent.' Gardiner v. Callender,
12 Pick. 374, is in point, and decides
that when E. H. K., one of the
executors of A. S., gave to the
executors of W. P. a memorandum
as follows: 'It is agreed that the
sum of $3,23.5, due from E. IT. R.
to the estate of W. P., shall be ap-
plied on a certain note of $6,000
now held by the representatives of
A. S.,' the memorandum amounted
to a payment on the note and was
not merely an executor's agreement.
The fact that a memorandum in
writing was made of the agreement
does not vary its legal effect. It
was not required by law to be in



writing. The court, as in Hills v.
Mesnard, sought the good sense of
the transaction, and to give effect to
the sensible arrangement of the par-
ties, holding that it could not be
necessary, in order to connect the
one debt with the other by an agree-
ment in prwsenti, that there should
be the vain formality of passing the
money from one party to the other
and returning it again to the party
from wliom it just came, or that a
formal release or receipt should be
executed. This case is not cited by
counsel or alluded to by the court
in the subsequent case of Cary v.
Bancroft, 14 Pick. 315, but the lat-
ter was decided upon a ground
which distinguished it from the
former case; the court holding that
in the case last cited tlie agreement
was executory and not executed,
requiring some further act to be
done before the one note would
operate as payment or extinguish-
ment pro tanto of the other. De-
hou V. Stetson, 9 Mete. (Mass.)
341, followed Cary v. Bancroft, and
was decided upon the same ground.
Another point was in the ease, to
wit: that one of tiie parties in-
terested in the debt whicli it was
sought to supply in payment as the
individual debt of one of his part-
ners had not been consulted, and
had no knowledge of the eontem-
lilated arrangement." See I'eabody
V. Peters, f) Pick. I ; Dudley v.
Stiles, 32 Wis. 371: Ely v. Me-
Night, 30 How. Pr. !)7 : Ilawkes
v. Dodge County Mut. Ins. Co..
11 Wis. 183; Shinkle v. First
Nat. Bank, 22 Ohio St. 516; Heaton
V. Angier, 7 N. H. 397, 28 Am. Dec.
S.'iS; Fatlock v. Harris, 4 D. & E.
180; Wilson v. Coupland, 5 B. &



630 SUTHERLAND ON DAMAGES. [§ 215

which he has a present right of action, and before commencing
suit thereon credits on such account a demand B. has against
him for services at their fair and full value, such credit by A.
so far operates as payment that B. cannot maintain an action
for his demand brought while such other suit is pending.'*^ But
where A. owes B. by promissory note payable in instalments,
and at the same time holds a note against B. for a larger
amount, on which he indorses as part payment the amount of
the instalments of his own note as they fall due, but without
B.'s consent, this is not a payment of the instalments.*' A pay-
ment by credit occurs where a bank receives a check drawn on
itself and credits the holder the amount,** or where the bank is
the creditor and receives the debtor's check drawn on itself.**
There is a distinction between the acceptance by a creditor from
his debtor of a new security for an old debt, and the acceptance
by a bank of a check drawn upon itself in payment of a note.
The former is a mere substitution of one executory agreement to
pay for another, or a commutation of securities; there is no
extinguishment of the precedent debt unless there is an agree-
ment to accept the new obligation or security as a satisfaction
of the old. ]kit when a bank receives upon a debt a check drawn

Aid. 228; Wharton v. Walker, 4 V>. v. Biirkhardt, ]00 U. S. 688, 25 L.

& C. 1G3; Cuxon v. Chadley, 3 B. ed. 767; American Exeh. Nat. Bank

& C. 591. V. Gregg, 138 111. 596, 32 Am. St.

Evidence of payment by set-off is 171 (although the bank may fail to

not admissible under a plea' of pay- charge the drawer with the

ment. Williams v. Uzzell, 108 Ark. amount) ; Watkins v. Parsons, 13

241. Kan. 420; Wecdsport Bank v. Park

*2 Briggs V. Piflimond, 10 Pick. Bank, 2 Keyes, 501.
391, 20 Am. Dec. 520; Allen v. Car- 45 Pratt v. Foote, 9 N. Y. 463;

man, 1 E. D. Smith, 602; Means v. Rozet v. McClellan, 48 111. 345, 95

Smith, Tappan, 00. Am. Dec. 551.

43 Greenough v. Walker, 5 Mass. If the guarantor of a note owned

214. See Clark v. Wells, 5 Gray, and held l)y a hank has on deposit

69. in it a sum nearly equal to the

A payment to a vendor on his amount called for by the note, a

own obligations is a payment in tender of his check for such sum

cash. Hand v. Gas E. & P. Co., 107 and the necessary amount of cash to

N. Y. 142; Foley v. Mason, G Md. the assignee of the bank satisfies

37. the note. Lionberger v. Kinealy,

44Addie v. National City Bank, 13 Mo. App. 41. See Shipp v.

45 N. Y. 735, Am. Pep. 160; Bank Stackor, 8 Mo. 145.



§ 215] CONVENTIONAL LIQUlJ)ATIONS ANT) DISC II AKGIOS. (l.".l

u\Km itself hy one of its customers and clmru'es it in accdiiiit,
it thereby admits that it has funds df I he drawer siillicient to
meet the eiieek, and the acceptance is per sc an apjjropriatiftn
of the funds to pay it. Tlie transaction operates directly as
a payment of the del)t.^° If the dividends on a ])olicy of life
insurance equal the i)remiums and have, in the iiiuncdiately
preceding years, at the request of the insured or his lx!neticiary,
been ap[)lied to the payment of the i)remiums as they heciaui'j
due, the latter are paid as fast as they l)ecoiii(' due so long as
the conditions stated exist.*''' So hmg as money ilk;gally exacted
from a member of a benefit society remains in its ti-easury and
is sufficient to meet assessments made upon him he is not in
default."'

By a valid new agreement the debtor may obtain the right
to pay otherwise than in monciy; and the accei)taiice by the
creditor of any chose in action or property will operate as
payment."^ The receipt by the creditor of bank bills or treasury
notes in payment of a gold debt, although undei- protest and
with an ex])ress reservation of a claim for the diirer(>nce, will
be payment dollar for dollar.^" So gold dollars, if api)Iied
towards the payment of a debt without any special contract as
to the value at which they are to be taken, cannot be treated
as having any greater value than any other currency which is a
legal tender for the payment of debts.^^ The common-law rule

46 1(1.^ Commercial Bank v. TTnion 49 [nnian v. Criswoid, 1 Cow. IDO;
Bank, ]] N. Y. 203. Sword v. Koitli. :U Mich. 247; Block

If a siglit draft is indorsed for ^ Dorman, 51 Mo. 31; Casoy v.
collection to the debtor's bankers
and by liis direction tlie amount it
calls for is charged against him, tlio

banker drawing his check for tlie ""i<Ierson, 17 Wen.l. U)(); Perkins

amount to the order of the creditor v. Cady, 111 Mass. ;ilS; Loci^e v.

and transmitting it to liiin, tlie Andres. 7 Ircd. If)!); Perit v. Pit!

debt is paid, although the hank field, f) Pawlc, IOC); Cramer v. W'il-

which so draws fails and its check jj.^^g ,;] in 4^] . Brown v. Feeter,

is made valueless. Welge v. Batty, ^ ^y^.^^^j 3^^^ . B„,H,ard v. Fra/.er.

11 111. App. 461. ,.^ ^^.^.,^ ^,^

47 Matlock V. Mutual L. Ins. Co.,

180 Pa. 360. 50,;il„,an v. Duuglas Cnunfy. 6

48 Knight V. Supreme Court of ^'cv. 27, 3 Am. Hep. 237.

Chosen Friends, 2 Silvernail, 453. 51 Bush v. Baldrey, M Allen, 367.



Harris, 2 Litt. 172; Allegheny R.
Co. V. Casey, 79 Pa. 84 ; leaves v.



G32 SUTIIEKLAND ON DAMAGES. [§ 215

that niarriago has the legal effect of paying or extinguishing a
debt the husband might owe the wife, or the wife the husband
at the time of marriage, is in force in Kentucky.^^

§ 216. Same subject. On the foreclosure of a naortgage on
real estate by entry the land inures as payment to the extent
of its value.^^ So taking possession of chattels mortgaged or
forfeited is also payment to the amount of their value; ^* and
the proceeds of sale realized by foreclosure are pro tanto pay-
ment.^^ Taking the debtor's body is a satisfaction unless he
escape.^^ It has this effect though the creditor consented to
his being set at liberty under an agreement which, the debtor
has failed to perform ; ^' or on his giving a Avarrant of attorney
which turned out to be void for informality.^^ It is not, how-
ever, an absolute satisfaction like payment, for it will jiot dis-
charge a guarantor,^^ nor prevent the creditor from pursuing
his remedy against other parties.^" The assignment of a mort-
gage on land, assumed by the purchaser of the land, to persons
named by him, who paid nothing for it and never had possession
of it, and which he caused to be recorded, evidences its pay-
ment and the note secured by it.^^ The assignment of a claim
by a creditor to his debtor is a payment of it.^^

A levy on sufficient personal property by execution is pre-
sumably a satisfaction of the debt; it is a means of payment,
aiul re<|uires only the performance of a ministerial duty by an
officer to accomplish it. The levy is not of itself satisfaction,
and anything which subsequently, without the fault of the
officer or creditor, prevents actual satisfaction, as if the debtor

52 Farley v. Farley, 91 Ky. 407. Blackburn v. Stupart, 2 East, 243;

53 IIp,1}t(. v. Holmes, 10 Pick. 381 ; Tanner v. Hague, 7 T. R. 420.
Briggs V. Richmond, id. 301, 20 Am. 58 .Jaques v. Withy, supra; Loomis
Dec. 526. v. Storrs, 4 Conn. 440. See Sheldon

54 Case V. Boughton, 11 Wend. v. Kihbe, 3 Conn. 214, 8 Am. Dec.
106; Charter v. Stevens, 3 Denio, 176.

33. 59 Terrell v. Smith, 8 Conn. 426.

55 Lansing v. Goelet, 9 Cow. 346; 60 Porter v. Ingraham, 10 Mass.
Globe Ins. Co. v. Lansing, 5 id. 380, 88.

15 Am. Dec. 474. 61 Lydon v. Campbell, 204 Mass.

56 Jaques v. Witby, 1 T. R. 557; 580, 134 Am. St. 702.

Williams v. Evans, 2 McCord, 203. 62 Dial v. Inland L. Co., 52 Wash.

57 Vigers v. Aldrich, 4 Burr. 2482; 81.



§ 21G ] CONVENTIONAL LIQUIDATIONS AND DISCHARGES. 033

has not been deprived of property levied upon, will destroy
its effect as evidence of that resnlt.^^ So long as the property
remains in legal custody the other renicdies of the creditor will
be suspended. He cannot have a new execution against the
person or property of the debtor, nor maintain an action on
the judgment, nor use it for the purpose of becoming a redeem-
ing creditor.^* The levy does not divest title; it only creates a
lien. It often happens that the levy is overreached by some
other lien, is abandoned for the benefit of the debtor or defeated
by his misconduct. In such cases there is no color for saying
that the judgment is gone. The judgment is satisfied when
the execution has been so used as to change the title or in some
other way to deprive the debtor of his property. This includes
the case of a levy and sale, and also of a loss or destruction of
the goods after they have been taken out of the debtor's pos-
session by virtue of the process.®^ In admiralty, where a res
is seized by a judicial process for a debt which cari'ics witli it
a jus in re, as between debtor and creditor, the maxim domino
perrit res means that the destruction of the seized property,
without fault of the debtor, works a payment of the debt to
the extent of its value. Where third parties voluntarily join
the seizing creditor in his proceeding and unite, so to speak,
in the seizure, also asserting claims which carry with them
liens, the destruction of the property, without fault of the
debtor, works a payment of their respective claims, to the ex-
tent of the value of the property destroyed, in the oi-dci- of the

63 Starr V. Mooro, 3 McLean, 354; Ohio, 223; Webb v. P.uinpass,

Clerk V. Withers, 2 Ld. Raym. 1072, Port. 201, 23 Am. Dec. 310: Green

1 Salk. 323, 6 Mod. 290; Mountney v. Bnrke, 23 Wend. 490; Browning

V. Andrews, Cro. Eliz. 237; Atkin- v. Ilanford, 5 Tlill, 588; Duncan v.

son V. Atkinson, id. 391; Ladd v. Harris, 17 S. & R. 436; Farmers'

Blunt, 4 East, 402; Bayley v. & M. Bank v. Kingley, 2 Doug.

French, 2 Pick. 590; Denton v. Liv- (Mich.) 379; Churcliill v. Warren,

ingston, 9 Johns. 98; Hoyt v. Hud- 2 N. H. 298; Ordinary v. Spann,

son, 12 id. 207; Troup v. Wood, 4 1 Rich. 429; Porter v. Boone, 1 W.

Johns. Ch. 228; Ex parte Lawrence, & S. 252; Ex parte King, 2 Dev.

4 Cow. 417, 15 Am. Dec. 386; Jack- .?41, 21 Am. Dec. 3.3."); Biiiford v.

son V. Bowen, 7 Cow. 13, 21 ; Cornell Alston, 4 Dev. 354.

V. Cook, id. 312; Wood v. Torrey, 64 P(.ople v. llopson, 1 Denio, 577.

6 Wend. 562; Cass v. Adams, 3 65 People v. ilopson, 1 Denio, 577.



634 SUTHERLAND ON DAMAGES. [§ 216

priority of their claims, and operates as a payment up to its
value precisely as would its sale and the application of its pro-
ceeds.^^

A sufficient tender, made and kept good by bringing the
money into court, is equivalent to a payment, and is such of
the date of the tender to prevent costs and interest. The
debtor pleading it cannot withdraw the money whatever may
be the verdict ; it must be paid to the plaintiff .^''^

§ 217. What is not payment. The deposit of money in a
bank where a note is payable is not of itself a payment, but
simply a tender,^^ unless in some way appropriated to the
note; ^^ nor is the surrender of a check at the clearing-house.'"
A note held by an administrator and payable to him is not paid
because he charges himself with the amount it re]jresents in
settling his accounts with the estate.'^ So charging a note sup-
posing the maker had funds in bank, when in fact he had not,
the charge being canceled the next day on discovery of the
mistake, will not amount to payment.'^^ And where the presi-
dent of a bank, having his notes lying therein under protest,
indorsed for his accommodation, procured the cashier to make
a new note, which the president indorsed and exchanged for
those protested, delivering the latter to the cashier for his
security, the original notes were not thereby paid, although the
president entered them as i)aid and all new notes as discounted.'^
A clerk of a bank stole from the drawer of another clerk
bills belonging to the bank, which he delivered to the cashier,
and which the latter, not knowing them to have been thus

t

66 Per Billings, D. J., in Gill v. tions to place the sum to the lat-

Packard, 4 Woods, 270. ter's credit and notify him thereof

67 Reed v. Armstrong, 18 Wend. is payment when such directions
446; Taylor v. Brooklyn E. R. Co., have been carried out. Beranek v.
119 N. Y. 561; § 275. Beranek, 95 Neb. 311.

68 Capital Nat. Bank v. Robinson, 70 Merchants' Nat. Bank v. Proc-
41 Wash. 454; Hill v. Place, 36 ter, 1 Cin. Super. Ct. 1.

How. Pr. 26. "^^ Robinson v. Robinson, 20 vS. C.

69 See Johnston v. Green, 102 Va. 567.

373; Sutherland v. First Nat. Bank, 72 Troy City Bank v. Grant, Hill

31 Mich. 230. & Denio, 119.

Payment to a bank, in which the 73 Highland Bank v. Dubois, 5

creditor has an account, with direc- Denio, 558.



§ 21Y] CONVENTIONAL LIQUIDATIONS AND DISCHARGES. (JoT)

stolen, accepted in discliargc of tlie l)aljnice dtie from siicli clerk
to the bank; the transaction did not work a payment.'* Tlio
nmtihition of a note by a stranger to it, with intent to cancel
and extinguish it, raises no presnnii)tion of its payment.'* 'J'lie
receipt of part o(" the amount due is imt a waiver of the right
to recover the balance, nor does it work an estojipc^I.'^ A note
is not paid because its maker placed in the hands of the payee's
attorney, who had the note for collection, notes and accounts
to be collected, on which cert:! in sums were paid the attorney,
but not' credited or applied on snch note, the payee of which
had not concurred in such arrangement. The attorney was
agent for the del)tor in making collections, and money paid liiiii
was the property of the latter. Until applied or appropriated
it could not become a payment on the note.'' Surrendering a
city warrant calling for the payment of a large sum for others
amounting in all to the same sum, these being dated nud in-
dorsed as was the original, is a mere exchange.'* An insurance
assessment is not paid by depositing the necessary sum in the
mail in the absence of anything in the dealings between the
parties giving such de^Josit that effect.'^ If money wdiich
reaches insurer after it is due is tendered insured within a rea-
sonable time it is not payment.*" An insurer owing an insured
employee money is not bound to apply any part of its indebted-
ness on the payment of an assessment due from him.*^ An in-
surance premium is not paid by a confession of judgment for
the amount of premium notes held by insurer.*^ Thus it ap-

74 State Bank v. Wells, 3 Pick. 77 TIatcli v. Hutchinson. G4 Ark.

394. ]]0; Moore v. Norman, 52 Minn. 83,

75Whitlock V. Manciet, 10 Ore. is L.K.A. 3.59, 38 Am. St. 52G.
366. 78Montieth v. Parker, 36 Ore.

The destruction of a note held by -.-q
a wife against her husband, under ,9 ^.^^ ^ ^^.^^^^^ j^^^^^^ ,^ ^^ ^

the influence of feelings caused by ^^.^ ^^^ j^^^,^^ ^^3 ^ Continental Ins.
his cruel treatment of her, is not
payment. Schlemmer v. Schendorf,
20 Ind. App. 447.

76 Hodges V. Tennessee I. Co.. 123 '*!"•
Ala. 572; Greer v. Laws, 56 Ark. 81 Pister v. Keystone Mut. Bvn.

37; Clark v. Equitable L. Assur. Ass'n, 3 Pa. Super. Ct. 50.
Soc, 76 Miss. 22; Whiting v. Plu- 82 Proebstel v. State Ins. Co., 14

mas County, 64 Cal. 65. Wash. 669.



Co. V. Hargrove, 131 Ky. 837.
80 Rice V. Lodge, etc., 92 Iowa,



0^6



SUTIIEIM.AJSl) ON J>A MAGES.



[§ 217



pears that unless there is an actual payment and receipt of
money, or something else accepted in its place as payment, a
debt is not satisfied ; any ceremony by which payment is nomi-
nally made or acknowledged may be avoided for mistake or
fraud, and so where the actual or authorized assent of the cred-
itor is wanting.^^ A selling agent may not accept goods or
services in payment of his principal's demand ; but if the debtor
believes the agent to be the principal and the latter accepts the
contract payment so made it is binding.®*

§ 218. Effect of payment. Whether a payment made by a
guarantor or surety or a volunteer will operate as a purchase
or as an extinguishment depends on the intention with ^Vhich
it is made.®^ But a debtor cannot himself become the owner,*^
nor pay his debt without discharging it, though he may wish



83 Hayden v. Lauffenburger, 157
Mo. 88.

Where a creditor liaving received
checks in excess of the amount of
an indebtedness inadverently failed
to retain a sufficient amount to
satisfy such indebtedness and re-
turned an excessive balance, only a
partial payment was effected. Mor-
ris V. Reyman, 55 Ind. App. 112.

A payment by a bankrupt of a
joint note of himself and another
subsequently set aside as a prefer-
ence will not discharge the indebted-
ness as to the Ijankrupt or debtor
even though the note was marked
paid and returned to the bankrupt.
Commercial Bank of Boonville v.
Varnum, 176 Mo. App. 78.

84 Hook V. Crowe, 100 Me. 309.

85 Fogarty v. Wilson, 30 Minn.
289: Swope v. Leffingwell, 72 Mo.
348 Lucas v. Wilkinson, 1 Hurl. &
N. 423; Morris v. Oakford, 9 Pa.
498; Kinley v. Hill, 4 W. & S. 426;
Elkinton v. Newman, 20 Pa. 281;
Carter v. Jones, 5 Ired. Eq. 196,
49 Am. Dec. 425 ; Mathews v. Aiken,
1 N. Y. 595; 1 Lead. Cas. in Eq. 88;
id. pt. 1, 167 (2d Am. ed.) ; Low v.



Blodgett, 21 N. H. 121; Ex parte
Balch, 2 Low. 440; Harbeck v. Van-
derbilt, 20 N. Y. 395; Mechanics'
Bank v. Hazard, 13 Johns. 353. See
Gillett v. Gillett, 9 Wis. 194.

In Louisiana the payment of a
note secured by a mortgage by one
not bound for it, and who had no
interest in discharging it, will not
subrogate liim to the rights of the
party to whom he paid, but will ex-
tinguish the debt and the mortgage
securing it, and the claim for reim-
bursement will constitute the party
who paid an ordinary creditor of
him for whose benefit the payment
was made. Nicholls v. Creditors, 9
Rob. 476; Weil v. Enterprise G. &
Mfg. Co., 42 La. Ann. 492.

86 Kingsley v. Purdom, 53 Kan.
56; Gordon v. Wansey, 21 Cal. 77.

But an officer of an insolvent cor-
poration may in the absence of
fraud, personally purchase at full
value an outstanding obligation of
the corporation without working a
discharge of the obligation. Martin
v. Chambers, 131 C. C. A. 181, 214
Fed. 769.



§ 218] CONVENTIONAL LIQUIDATIONS AND DISCIIAKGES. G37

and intend to keep it on foot; *' and any assignment to a third
person with a view to keeping it alive will be void.*^ A pay-
ment actually made np<tn a debt, whether of the whole or a
2)art, is a total or partial discharge, and cannot afterwards he
changed except by mutual consent, and if other parties are
interested, by their consent also,^^ Where marriage extin-
i>uishes a debt due from the wife to the husband it. also dis-
charges any lien by which the debt was secured, and the debt
is not revived by a divorce.^" As will more fully appear in
another connection,^^ the payment of a debt due after suit
brought will prevent the recovery of interest as damages,''^
though it would be otherwise if there had been a contract to
pay interest.'^

After a judgment recovered upon a paid debt, or without
deducting payments, the sum paid cannot be recovered ; pay-
ment in a strict sense is a defense, and if not used as such is
lost.^* The payments must be strictly such or definitely ap-



87 Martin v. Chambers, 131 C. C.
A. 181, 214 Fed. 769; Livermore v.
Truesdell, Colo. App. 332 ; Champ-
ney v. Coope, 34 Barb. 539; Collins
V. Adams, 53 Vt. 433; Hammatt v.
Wynian, 9 Mass. 138; Brackett v.
Winslow, 17 id. 153; Adams v.
Drake, 11 Cush. 504; Tuckerman
V. Newhall, 17 Mafis. 581 ; Chapman
V. Collins, 12 Cush. 163; Pray v.
Maine, 7 id. 253; Harbeck v. Van-
derbilt, 20 N. Y. 395, 398. See
Shaw V. Clark, 6 Vt. 507, 27 Am.
Dec. 578.

If payment is made at tlie rcijuest
of the maker the obligation is ex-
tinguished and an indorsement of it
subsequently made by the payee is
ineffectual. Moran v. Abbey, 63
Cal. 56; Pearce v. Bryant C. Co.,
121 111. .590.

88 Id.; Moran v. Abbey, 58 Cal.
167; Gordon v. Wansey, 21 id. 78;
Citizens' Bank v. Lay, 80 Va. 436;
Rolf V. Wooster, 58 N. H. 526.

It makes no difference that an at-



tempt to transfer was made at tlie
time of payment, and as a part of
that transaction. Wright v. Mi.\,
76 Cal. 465.

If a note is deposited in a bank
for collection, a payment made by
a guarantor, surety or the maker
will discharge it. Citizens' Bank v.
Lay, 80 Va. 436; Lancey v. Clark,
64 N. Y. 209, 21 Am. Rep. 604;
Eastman v. Palmer, 32 N. Y. 238;
Doolcy V. Virginia K. & M. Ins. Co.,
3 Hughes, 221.

89 Mead v. York, 6 N. Y. 449, 57
Am. Dec. 467; Marvin v. Vedder,
5 Cow. 671; Hawkins v. Stark, 19
Johivs. 305; Frost v. Martin. 26 N.
TI. 422, 59 Am. Dec. 353; Miller v.
Montgomery, 31 111. 350.

Farlov, 91 Kv,



90 Farley '

91 Ch. 8.

92 Davis V.



Ilarriiigtim,
Sav. Bank



497.



160 Maas.



Adams,



93 Andover
1 Allen. 28.

94 Loring v. Mansfield, 17 Mass.



638 SUTHERLAND ON DAMAGES. [§ 218

propriatecl to the debt to have tliat effect.^^ Where a sum of
money was delivered by the obligor to the obligee to be credited
by the latter upon the bond as part payment and the obligee
neglected to indorse or apply it and obtained judgment for the
whole; amount cif the bond, the obligor was allowed to recover the
money paid.®^ There was a special trust reposed in the defend-
ant to credit the money on the bond and he had violated it.
Where, however, there is a direct payment on a debt which is
not evidenced by writing of any kind ; where no act beyond pay-



Online LibraryJ. G. (Jabez Gridley) SutherlandA treatise on the law of damages : embracing an elementary exposition of the law, and also its application to particular subjects of contract and tort (Volume 1) → online text (page 72 of 144)