The Hawaiian gazette., 1875-02-03
supreme Court Of the Hawniinn
IsInnds-Jan. Term. 1873.
D FoSTER & co. pa THOMAS SPENCER


D. FOSTER & CO. rs. THOMAS SPENCER
Before HARRIS and JUMP, J.J. Mr.. Justice HAIR
R1s delivered the opinion Of the Court.
This case is submitted under the statute, Sections
ll40to Il4S of the Civil Code, upon the following
statement of facts
The plaintiffs claim Of the defendant s5SS.9s, for
freight on their schooners, as per Exhibit "a,
which freight is for sugars which it is agreed were
carried on the plaintiffs sehooners at the time
named in said Exhibit, and they also claim interest
thereon to date.
The defendant AYERS that note dated May O.
1874, signed BY Walker & Allen. whereby they
promise to pay $500, 10 the PLAINTIFF order In
thirty days from its date, which note It is agreed
was received by the plaintiff at iis date, is an OF
set and the only question of law is whether said note
is TO be regarded as a payment to the amount OF
its face; and II so, whether such payment is to be
appropriated to this claim against the defendant.
Il is agreed that this note Is credited on Walker
& Aliens books TO the account OF Foster & Co.,
as per copy Of their account hereto appended
marked Exhibit "B" And il Is agreed that Ex-
hibit &C" hereto attached, shows the freight bills
presented by the plaintiffs to said Walker & Allen
as agents for the parties to whom the same are
made out between April and May last; that the
note was dshonored, and that Walker & Allen are
insoveut aud unable to pay the same In full; that
nothing was said by Walker 6 Allen as to applying
the said note to any particular account. and that
Foster s. Co. had general business dealings with
Walker & Allen besides special freight account.
It is admitted by this submission, that the de-
PENDANT Spencer was liable at some time for the
whole Of the amount set forth In the submission,
the parties to the submission probably con
sdering that the recent rulings in Mark Rob
inson vs.. Kinds, and Parke & Robinson va S. l.
Austin, in of afreightment very similar to
this was decisive OF the responsibility Of the de-
PENDANT in this matter, and rightly so. And now
the question arises to whether the note OF
Messrs. Walker & Allen TO the plaintiff extnguish-
ed any part of the debt Of Spencer to the plaintiff
If ;he creditor agrees to accept the promissory
note of third party in satisfaction of bis debt, ID
would be extinguishment Of the debt but the
mere taking of the note without such an express
agreement is not an extinguishment Of the debt.
q New Ham. p. 2SlI We can conceive of cases
where persons taking notes of agents of planta-
tions for freights would lose their hold upon the
owners of the plantation, as for instance where
proprietor of plantation had large credit ac-
count with his agent, and was always ready aud
willing to pay his freight, and supposing 1t TO be
paid, and by the bankruptcy OF his agent became
user then the note of the agent thus taken would
become a satisfaction of the debt by reason OF the
negligence of the creditor in not presenting his
demand aud collecting it from the principal
1 New Ham. p 2S2
Wright vs.. First Crockery Ware Co.
In Monroe vs.. Hof DEMO, SOS, (see likewise
Tobey VS.. Barker, Johns ~, it is said "the doc
trine now is, that If the note OF third person is
taken either for goods sold at the time Of making
the contract or for an antecedent debt, it Is not
considered payment unless agreed to be taken as
a payment" Many authorities might be quoted to
the effect, and we believe this to be the gene
rally accepted doctrine. In this case 1t does not
appear that there was any agreement by the plain
tiffs to take the note Of Walker & Allen in salts
faction of spencer's debt 10 them, and therefore
We do adjudge that the said note is not legal set
of to the plaintiffs demand
A. s. HartweIl, attorney for plaintiff.
R. II. Stanley, attorney for defendant.
CHAs Z. HARRIS,
A. FRANCIS JUDD
Honolulu, January S0th. 1875 roo