Perry G. Card v. Berlin Curtis, 14 Vt. 236

The opinion of the court was delivered by Royce, J. The only question is whether the writing, signed by the plaintiff, and bearing date October 28th, 1839, discloses a defence to this action. It is relied upon as affecting the right of recovery in several ways; 1. As showing a want °f consideration for the note declared on ; 2. As showing payment thereof by the note of §115.00, signed by the defendant and Tuttle, and, 3. As showing it subject to a condition not yet performed.

The inference most favorable to the defendant is, that the note in suit and the one signed with Tuttle were received by the plaintiff at the same time; and that, to the amount of the former, they were given for the same debt. But upon this supposition it would not follow that one became an operative instrument and the other not. It would be but a case of two distinct securities for the same debt, where a satisfaction of the debt would operate alike upon both securities. The writing alone is not sufficient to establish either of the supposed defences.

It does not disprove the consideration, which is admitted on the face of the note, nor does it show that the other note was ever received in payment of this. On the contrary, the stipulation to surrender this note if the other is paid, implies that until the other is paid this is to remain in force. And as to the plaintiff’s undertaking to give thirty days notice in writing, I need only say that no consideration appears to render it binding upon him. Judgment affirmed.