#### Thorndike Deland *versus*The Amesbury Woollen and Cotton Manufacturing Company.

Where a factor, having sold goods of his principal, took a negotiable note in his own name for the price, and before the same became due, the purchaser failed and assigned his property by an indenture, which contained a release of all debts due to the creditors who executed the same, among whom was the factor, who had several demands of his own against the purchaser, it was held, in an action by the factor to recover back money advanced to the principal, that parol evidence was not admissible to show that the factor intended to release only the debts due to himself; and that as the purchaser was discharged from the note in question, the principal might avail himself of that fact in defence to the action.

Assumpsit for money had and received. Trial before *Putnam*J., on the general issue.

The plaintiff proved that the defendants, before January 4, 1822, sent to him as a factor, to be sold on their account, divers goods, and that they received from him money exceeding in amount the cash proceeds of the goods ; to recover which •difference this action was brought.

On the 4th of January, 1822, the plaintiff sold some of the goods to one Ward, for 189 dollars 87 cents, part on a credit *251o< iour months and part on a credit of six months ; and he afterwards took Ward’s note, dated January 10, 1822, payable to the plaintiff or order, for 338 dollars 62 cents, including the sum of 189 dollars 87 cents, and also the sum of 48 dollars 75 cents due for goods belonging to one Worthen, which he had sold to Ward. A short time before the note became due, Ward failed in business, and no part of the note has been paid.

The defendants contended, that the plaintiff had released Ward from the payment of the note, and they produced in evidence an indenture, by which Ward made a general assignment of his property for the benefit of his creditors, to the plaintiff and one Whipple, which was executed by the plaintiff both as a creditor of Ward and as assignee. By this indenture the plaintiff released all his demands against Ward. At the time of the execution of tire indenture by the plaintiff, the note was in his possession and has so remained ever since.

It did not appear that Ward knew, or did not know, that any person, other than the plaintiff, had any interest in the note or the goods for which it was given.

The plaintiff, to prove that it was not his intention, by the release contained in the indenture, to discharge Ward from the payment of this note, produced Whipple, who testified that the plaintiff had several other demands against Ward, and that after he had executed the indenture, he made a statement in writing of his demands against Ward, and showed it to Whipple for the purpose of having the demands allowed against Ward’s estate, and that this note was not contained in the statement. The defendants objected to the admission of this testimony, but the objection was overruled. It did not appear that Ward knew of this statement’s being made.

The jury were instructed, that it was competent for the plaintiff to explain and control the operation of the release m the indenture under the seal of the plaintiff, by parol evidence, in like manner as a receipt for money not under seal might be explained and controlled ; and that if it was not his intention to release Ward from the payment of the note in question, then Ward was not released from such payment, and in that case they ought to find a verdict for the plaintiff.

The jury returned a verdict for the plaintiff; and the de*252fendants moved for a new trial on account of the admission of the testimony of Whipple.

*Nov. 6th.*

Nov. *8th.*

*Moseley,*for the defendants,

cited *Stackpole*v. Arnold, 11 Mass. R. *27; 3*Stark. Ev. 1009.

*J. Pickering*and *Merrill, contra,*

cited 3 Stark. Ev. 1046, 1051, 1054 ; *Wilkinson*v. *Scott,*17 Mass. R. 257 ; *Rex*v. *Scammonden, 3*T. R. 474 ; *Webster*v. Lee, 5 Mass. R. 334 ; *Hodges*v. *Hodges,*9 Mass. R. 320 ; *Smith*v. *Whiting,*11 Mass. R. 445.

Per *Curiam.*

The release is absolute and unequivocal in its terms, and it cannot be explained by parol evidence. If it was the intention of the plaintiff to except this note from the release, it should have been so expressed in the indenture ; and if that had been done, possibly Ward would have refused to assign his property. Ward is discharged from the note, and that destroys the plaintiff’s right of action against the defendants, unless he can show that they authorized him to give the discharge.1

*Verdict set aside*

1

 As to the effect of a factor’s taking a note payable to himself, see 2 Kent (3d ed.) 622; *Hosmer v. Beebe,*14 Martin, (Louis.) 368.