Calk vs. Orear, 2 B. Mon 420

Chief Justice Robertsos delivered the Opinion of the Court. The plaintiff in error, ( Thomas Calk, Sr.) being indebted to the defendant in error, (John D. Orear,) on an implied assumpsit for a wagon made for him, and at his instance delivered to his infant son, ( Thomas Calk, Jr.) The latter, without his father’s authority, executed to Orear a promissory note for the amount due, and which was intended to be the note of Thomas Calk, Sr. and was so received by Orear.

Thomas Calk, Sr. refusing to recognize the said note as his obligation, Orear sued him in assumpsit on the original consideration, and recovered a judgment—now sought to be reversed on the ground that the parol liability had been merged in the note. But we are clearly of the opinion that there was no such merger, because the note having been unquestionably accepted as the obligation of Thomas Calk, Sr4 and being void as to him and hitherto repudiated by him, it could not be deemed a legal satisfaction or extinguishment of his pre-existent liability.

And, therefore, were it admitted to be technically the obligation of his infant son, on which Oxear might sue that son and escape the plea of infancy; nevertheless he cannot be required to make any such hopeless experiment, as the note has not merged or extinguished the father’s original liability in assumpsit. Morehead tf- Reed for plaintiff; Apperson for defendant. The judgment is therefore affirmed.