#### John S. Beauford, Respondent, *against*Thomas A. Patteson, Appellant.

(Decided February 6th, 1882.)

Where a promissory note is given in renewal of a previous note of the maker, held by the payee, on the agreement, by the payee to return the previous note to the maker, cancelled, and such previous note is not in fact so returned, no action can be maintained by the payee against the maker upon the new note.

Appeal from a judgment of the general term of the Marine Court of the City of Hew York affirming a judgment of that court entered upon a verdict rendered by direction of the court.

The facts are stated in the opinion.

*John M.*Bowers, for appellant.

*L. Laflin*Kellogg, for respondent.

Van Brunt, P. J.

In May, 1876, the plaintiff claimed to be the holder of an obligation made by the defendant for £125 sterling, which was then due, and obtained from the defendant his two promissory notes of the date of May 12th, *3341876, in settlement of said obligation, and the contract between the parties was evidenced by the following receipt:—

> “ New York, May 12th, 1876.

> Received of Thomas A. Patteson, his two notes of this date, at nine and ten months after date, for three hundred and forty-three each in settlement of his obligation for £125 (one hundred and twenty-iive pounds sterling), which I hold in England, and which I agree to return to him cancelled.

> [Signed,] J. S. BeAUFOKD *&*fin

The plaintiff failed to return the obligation for £125 to the defendant, and brought suit in the Marine Court upon one of the notes above mentioned, the same not having been paid at maturity. It appeared upon the trial of the cause that at the time the notes were given the plaintiff had reason to believe that the obligation for £125 was lost, or mislaid, or destroyed. Evidence was also received without objection upon the part of the plaintiff that the undertaking to return depended upon the finding of the original note by the plaintiff upon his return home. The court upon the trial directed a verdict for the plaintiff, and refused to submit any questions to the jury, to which direction an exception was duly taken by the defendant. Upon appeal to the general term of the Marine Court the judgment was affirmed, and from such judgment of affirmance an appeal was taken to this court.

The identical question involved in this appeal has been decided by the general term of this court in the case of *Miller*v. *Ritz*(3 E. D. Smith, 253); and in the opinion of the court in that case the question is discussed upon a basis which in our judgment shows that a recovery cannot be had under the circumstances in this case.

It is true that in the case of *Catlin*v. *Hansen*(1 Duer, 310), the same question was decided differently; but it is to be observed that the court in their opinion base their conclusion upon other questions, and other circumstances which in no way relate to this question, and in consequence of the conclusion which they arrived at upon the other questions this point was of no *335importance in the determining of the case; and it appears from the opinions of the court in that case that the statement which is in contradiction to the decision of the general term of this court is a mere dictum, it not being considered by the other justices composing the general term, both of whom wrote opinions ; and the opinion containing that *dictum*nowhere considers the points "which are so ably presented by Judge Woodruff in support of the'conclusion at which, he had arrived in the case of *Miller*v. *Ritz.*

There is, however, another view of this case, which is not considered by either of the opinions above mentioned. The receipt was the contract between the parties, and although it is claimed that the agreements were not mutual or conditional, yet it is a familiar rule of law that one party to a contract can compel another‘to perform his part of the contract; but he must show that he has performed all its conditions upon his part. In this case the plaintiff by his contract having agreed to return this note, and although he failed so to do, seeks to call upon the defendant to do that which he promised to do as part and parcel of the same agreement.

It is urged that the loss of the note releases the plaintiff in this action from a performance. That might have been true if such loss had occurred subsequent to the making of his contract which is evidenced by the receipt of May 12th, 1876. But if, knowing that that note was lost, for the purpose of getting these new notes, he agreed to return the old, he was guilty of a fraud, and he should not be allowed to recover even if the contract contained in the receipt did not express the true intent of the parties; but the agreement was that the note should be returned if it could be found. That was a question which should have been submitted to the jury.

It is urged that the obligation for £125 is outlawed, and for that reason the failure to return that obligation cannot be a defense. It is true that such obligation is outlawed as long as the defendant remains in the City of Hew York, but if he is served with process in an action commenced in another state or country the Statute of Limitation of the state of Hew York will not aid him to defeat a recovery: and if that note should *336turn up in the hands of some holder who had acquired it prior to the giving of these new notes, he would be required to pay it over again notwithstanding he should pay the amount of this judgment. Therefore, it would seem, both upon principle and authority, that no recovery could be had if the receipt expressed the contract between the parties; and consequently, that if it did not express the contract between the parties, the defendant had the right to go to the jury upon the evidence as to what the true contract between the parties was.

The judgment must be reversed and a new trial ordered, with costs to abide the event.

Beach, J., concurred.

Judgment reversed and new trial ordered, with costs to abide event.