Olcott v. Rathbone
New York Supreme Court
This was an action of assumpsit, tried at the Albany circuit, in February, 1829, before the Hon. William A. Dues, then one of the circuit judges. The Mechanics’ and Farmers’ Bank in Albany, of which bank the plaintiff is the cashier, was the holder of a note for $380 drawn by the defendant, payable to and endorsed by Samuel Rathbone.
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This was an action of assumpsit, tried at the Albany circuit, in February, 1829, before the Hon. William A. Dues, then one of the circuit judges. The Mechanics’ and Farmers’ Bank in Albany, of which bank the plaintiff is the cashier, was the holder of a note for $380 drawn by the defendant, payable to and endorsed by Samuel Rathbone. On the 4lh April, 1828, when the note was about to fall due, an agent of the drawer and endorser called at the bank with two checks drawn by Samuel Rathbone on a bank in the city of New-York, one for $261,26, and the other for $120, and with two notes drawn by J.…
1Opinion of the Court
By the Court,
Marcy, J.
The first question to be deter» mined is whether the acceptance of the small note and check by the plaintiff and the giving up of the previous note, put an end to existence of the latter as a promissory note ? If there is no note, the plaintiff cannot be the holder of it, and in no other respect is it pretended that he can maintian this action. The acceptance of the check was not a payment to the amount of it on the note, unless it was expressly agreed to be accepted as such, or unless the circumstances clearly show that such was the understanding of the parties. More…
2Cases cited1 opinion
- Kean v. DufresneSupreme Court of Pennsylvania · 1817
3Cited by46 opinions
- Pratt v. . FooteNew York Court of Appeals · 1854
- Gage v. KendallNew York Supreme Court · 1836
- Matteson v. EllsworthWisconsin Supreme Court · 1873
- Griffith v. GroganCalifornia Supreme Court · 1859
- Thomas R. Wood & Co. v. Merchants' Saving, Loan & Trust Co.Illinois Supreme Court · 1866
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