Slade v. Mutrie

The counsel for the defendant concedes that, by the law of this Commonwealth, the payment of a part of a debt after the whole debt has become payable is not a sufficient consideration to support a promise not under seal to discharge the remainder of the debt. Brooks v. White, 2 Met. 283. Harriman v. Harriman, 12 Gray, 341. Potter v. Green, 6 Allen, 442. Grinnell v. Spink, 128 Mass. 25. Lathrop v. Page, 129 Mass. 19. Tyler v. Odd Fellows’ Relief Association, 145 Mass. 134, 137. Foakes v. Beer, 9 App. Cas. 605.

*21The jury, in returning a general verdict for the defendant, must have found on the judge’s charge that the note was surrendered by the plaintiffs to the defendant that it might be can-celled, and that the plaintiffs intended by delivering the note to the defendant to give him the note and discharge the remainder of the debt.

For certain purposes, a bill of exchange or a promissory note is regarded in this Commonwealth, not merely as evidence of a debt, but as the representative of a debt, or the debt itself. Each may be the subject of a gift, but to constitute a gift there must be a delivery by the owner to the donee, with the'intention of passing the title. Grover v. Grover, 24 Pick. 261. Sessions v. Moseley, 4 Cush. 87. Bates v. Kempton, 7 Gray, 382. Chase v. Redding, 13 Gray, 418. See Sheedy v. Roach, 124 Mass. 472; Pierce v. Boston Five Cents Savings Bank, 129 Mass. 425; Taft v. Bowker, 132 Mass. 277; McCann v. Randall, 147 Mass. 81; Cochrane v. Moore, 25 Q. B. D. 57; Gammon Theological Seminary v. Robbins, 128 Ind. 85.

It follows from this, that the delivery of a promissory note by the holder to the maker, with the intention of transferring to him the title to the note, is an extinguishment of the note, and a discharge of the obligation to pay it. Hale v. Rice, 124 Mass. 292. Stewart v. Hidden, 13, Minn. 43. Ellsworth v. Fogg, 35 Vt. 355. Vanderbeck v. Vanderbeck, 3 Stew. 265. Jaffray v. Davis, 124 N. Y. 164, 170. Exceptions overruled.