Thayer v. Brackett
Massachusetts Supreme Judicial Court
This action, which was in assumpsit, was submitted to the decision of the Court an agreed statement of facts. [*451] * From this statement it appeared, that the plaintiff was justly entitled to recover the sum of $ 190.25, demanded by him, except so far as the facts hereafter stated amount to a discharge. Prior to the commencement of this suit, the defendant paid to the plaintiff the sum of $ 147.80, for which he took the plaintiff’s receipt on account generally.
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This action, which was in assumpsit, was submitted to the decision of the Court an agreed statement of facts. [*451] * From this statement it appeared, that the plaintiff was justly entitled to recover the sum of $ 190.25, demanded by him, except so far as the facts hereafter stated amount to a discharge. Prior to the commencement of this suit, the defendant paid to the plaintiff the sum of $ 147.80, for which he took the plaintiff’s receipt on account generally. A part of this payment was made by r note of hand signed by one Samuel Clarke, for $ 117.90, with interest, payable to the…
1Opinion of the CourtParker, C. J.
It is very clear that the neglect of the plaintiff to give notice to the defendant of the non-payment of the note which had been indorsed to him has discharged the defendant from his liability as indorser;† [ *452] so that, if he had made an absolute tender *of the balance due on the account, after deducting the amount of the note, he would have been discharged from this suit.
But he lost the benefit of his tender, by insisting on a receipt in full of all demands, which the plaintiff was not obliged to give him.‡ The defendant should have relied on his tender, and upon proof at *395the trial that no…
2Cited by12 opinions
- Lilienthal v. McCormickCourt of Appeals for the Ninth Circuit · 1902
- Colvin v. . HolbrookNew York Court of Appeals · 1848
- Moore v. NormanSupreme Court of Minnesota · 1892
- Elderkin v. FellowsWisconsin Supreme Court · 1884
- Lyman v. HolmesSupreme Court of Vermont · 1915
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