
    ASHTABULA COUNTY,
    AUGUST TERM, 1833.
    JUDGES-LANE AND WRIGHT.
    CHAPPELL v. PHILLIPS.
    Accord and satisfaction — variance—payment to payee before endorsement available, if endorsee have notice.
    Under a special plea of accord, &c., with George Emory, evidence is inadmissible of an accord with John Emory, but an accord and satisfaction may be given in evidence under non assumpsit.
    Payment made on a negotiable note before due or negotiated, will avail, if the endorsee' had noticebf it when he took it; but ■without such notice, the maker loses, because he neglects the endorsement of the payment, and enables the holder to pass it away at its face.
    Assumpsit on a note by Phillips to Beach or bearer, payable the 7th April, 1831, with the common counts.
    Pleas: 1. Non assumpsit, with notice of setoff. 2. Accord and satisfaction by a horse, delivered to Geo. Emory, agent.
    
    The plaintiff read the note endorsed to the plaintiff, and proved that he received it in 1830, in payment of land, and rested.
    The defendant offered to prove an arrangement, made with John Emory, about horses, &c.
    
      * Newton, for the plaintiff,
    objected; the plea is, that it was made with George Enory.
    
    
      Giddings contra.
   LANE, J.

Under the special plea, the evidence is inadmissible ; but if the counsel will state, that at the time the plaintiff took the note, he knew of this agreement, it may be admitted under the general issue.

Hand and Newton, to jury, for the plaintiff.

Wade and Giddings contra.

Evidence was then offered to show that the plaintiff only held the note as agent of Beach, and as collateral security, and when he presented it, he was told of the contract, and said, if he had known it, he should not have come down.

LANE, J. to jury. If the suit were between Beach and Phillips, and the property was tendered to the agent, according to the agreement, and was accepted or retained for him, that will discharge the defendant. But, the question is, whether the plaintiff was affected by this movement ? The note was negotiable, and endorsed to the plaintiff before due. Any payment made before the endorsement, is good for so much, if the endorsee, when he took the note, had notice ; if not, he took the note unincumbered by such payment, because the maker should have seen that the payment was endorsed, and not have left the note without endorsement in the hands of the holder, to be passed away as if all was due.

Verdict and judgment for the plaintiff.  