
    MURPHY VS. ECKEL.
    Where a debtor gives to his creditor a note drawn by a third person,the debt is not extinguished, unless it is expressly so agreed.
    But where the creditor has obtained judgment, he should not be allowed to issue execution until the note is returned.
    Error to Common Pleas of Schuylkill County. No. 52 July Term, 1853.
    The account showed that Murphy had given to Eckel a number of bills receivable amounting to $3,437.01, among which were the note ot $737.06, which was sued on, and also a note of $1,000 drawn by Murphy. Murphy received from Eckel $2,891.87 worth of coal. Afterwards Murphy gave to Eckel some notes of third parties and received the $1,000 note back. Of these notes one for $507.35 drawn by James Moore and ■ endorsed . by Murphy was not paid.
    The other facts appear in the charge of the Court per
    Jordan, J.:
    This is an action of assumpsit, founded on a promissory note dated April 8th, 1848, for the sum of $737.06, payable at the Bank of North America, 60 days after date drawn by defendant, Michael Murphy, and made payable to Henry Eckel. The note fell due on the 10th of June, 1848, and it not being paid by the drawer, Michael Murphy, it was duly protested for non-payment. The plaintiff in this action is seeking to recover the amount of this note with the interest due upon it.
    The consideration of this note appears to have been coal, which the plaintiff undertook to deliver to the defendant, or his order. The article of agreement between the parties is dated on the 7th of January, 1848, and by it Eckel agrees' to sell and deliver to Murphy, or his order, all the red ash coal, he shall mine and take out of his Tunnel Colliery, near the town of Tremont, from the date of the said agreement until the close of the navigation in 1848, for which Murphy agreed pay to Eckel the sum of $2.15 per ton for all broken, egg and stove coal,-and $1.65 per ton for nut coal, mined and deli vered as aforesaid ; tor which H. Eckel was to draw drafts on Murphy at the end of each week, at 60 days, payable in Pottsville. Murphy by this agreement was to advance Eckel $1,500 on account of said coal. The coal was to be delivered to Murphy in good merchantable order, free of slate and dirt, in the cars of the Philadelphia and Reading Railroad Company^ at their depot at Schuylkill Haven, and to be paid for by the toll weight on the Mine Hill and Schuylkill Haven Railroad. It was further stipulated, in case the cars of the Philadelphia and Reading Railroad Co. could not be obtained, Eckel had the privilege to send by navigation cars, delivered at their landings at Schuylkill- Haven, at the same terms and prices stated above.
    The plaintiff Henry Eckel, in pursuance of this agreement, delivered to Michael Murphy, between the 30th of March, and the 22d of May, 1848, coal, amounting to the sum of $2,891.87f.
    By this agreement between the parties Murphy was to pay for the coal, what is called toll weight, and not gross weight. This ■would, according to the testimony of the witnesses, make a difference of 5 per cent., and would reduce the above sum of $2,891.-89f- to $2,747.28|.
    In March, 1848, Murphy is credited with bills receivable. $1,830 00
    On the 1st of April...................... ..... 241 38
    On the 8th of April........... '................ 737 06
    On the 2nd of May........................... 628 57
    Those bills amount to....................*.......$3,437 01
    and show a balance in favor of Murphy of $545.13J. This balance will be increased by making the deduction of 5 per cent, from the amount of coal delivered by Eckel to Murphy. By an indorsement on the account in evidence Mr. Eckel promises to send coal for the balance, or a draft on C. E. Spangler for pay ment. Mr. Eckel, by letter dated the 24th of May, 1848, informed Mr. Murphy that he had stopped all operations at-his Tunnel Colliery for the present, that the two veins he had been working were so far worked out as not to be worth working or following any further.
    If the above bills, amounting to $3,437.01, have been paid by M. Murphy as they matui’ed, or afterwards, to Henry Eckel, the latter would be in debt to the former.
    The defendant alleges that Mr. Eckel has failed to fulfill this agreement entered into between them on the 7th of January, 1848, in two particulars: (1.) That he did not deliver to Murphy all the coal rained by him at the Tunnel Colliery. (2.) That the coal delivered was not merchantable, and that he was to put to expenses in separating the bone and slate.
    That he did not deliver all the coal mined, appears to be proved by Capt. Spangler, to whom during the summer and fall of 1848 he delivered 541 tons- — -broken, egg and stove coal.
    With respect to the quality of the coal delivered you will determine from all the evidence in the cause, whether it was delivered in good merchantable order, free of slate and dirt, as stipulated in the agreement, if it was not and a loss resulted to the defendant in consequence it would constitute a fair item to be deducted from the amount claimed by plaintiff. You have the testimony of several witnesses that it was not merchantable in the way it was sent; and a letter of M. Murphy of the 31st of March, 1848, that a train of coal arrived at Richmond on the 30th, while he was there, and with which he was much pleased, and which he states gave entire satisfaction.
    By this agreement between the parties already referred to, Eckel sells to M. Murphy, and is to deliver him all the red ash he shall mine and take out of his Tunnel Colliery from the date of agreement to close of pavigation. Whether he did or not is a question ot fact for you ; if he did not it is a breach of his agreement and whatever loss or damage resulted from the breach to Murphy should be deducted from the note in suit. The damage, if any, is submitted as a matter of fact to you. The defendant has not introduced any witnesses to show any loss on the coal sent him, other than he was put to some expense in separating the slate and bone — if there is any other evidence you will recollect it, and give it the weight it is entitled to.
    The following point was put by defendant and answer thereto was assigned for error :
    4th. That Murphy is entitled to credit for having paid the $1,000 note that he took up as testified to by John Barndt, notwithstanding the note of James Moore $507.50, which was received as payment, was not paid at maturity, but was dishonored and that the remedy of plaintiff on that note is upon the same against him, Murphy, as payee of the note.
    
      To 4th point. This point is answered in the negative. The $1,000 note was not paid by Murphy. It was taken up by him, at his instance, if you believe the testimony, and instead thereof notes to the amount of $1,346.87 were given. Interest to the amount of $15.67 was deducted, and a receipt given by John Barndt for $330. The substitution of other notes instead of the $1,000 is not, in this case, payment of the $1,000 note, and does not entitle Murphy to a credit to that amount.
    Judgment for plaintiff. Murphy then took a writ of error and it was argued by F. W Hughes, Esq., in his behalf that the substitution of a note made by a third party and the return of the original note was a payment of it. Kearslake vs. Morgan, 5 T. It. 513; Slaymaker vs. Gundacker’s Ex., 10 S. & R. 82. Giving up the old note was a decisive circumstance. Estate of Davis and Desauque, 5 Wharton 538 ; Bedford vs. Deakin, 2 B. & A. 210. At any rate it was a question for the jury. Hall vs. Boiler, 15 S. & R. 163 ; Jones vs. Shawhau, 4 W. & S. 263.
    
      Messrs. Campbell and Bannan contra.
    
   The Supreme Court affirmed the ruling of the Court below on May 16, 1854, in the following opinion by

Knox, J.:

This was an action on a promissory note. The plea was payment, &e. Under this plea the defendant was entitled to show that in equity and good conscience the plaintiff could not recover. The note upon which suit was brought was given for coal. It formed part of a large transaction in which it appeared that the notes given by the defendant to the plaintiff exceeded the amount of the coal furnished in the sum of between five and six hundred dollars, and this over-payment, together with the damages for the non-performance of the contract was the defense relied upon. Whether the defendant was to be allowed a credit for a note dated in March, 1848, for the sum of one thousand dollars is the only question here presented. A few days before the one thousand dollar note became due at the request of Murphy it was exchanged for other paper, made by third persons and endorsed by Murphy. Of which one, a note against one James Moore for $507.35, which was protested, for non-payment, was produced by Eckel upon the trial.

The defendant requested the Court to instruct the jury that Murphy was entitled to a credit tor the one thousand dollar note, notwithstanding the non-payment of the James Moore note. This was refused and the jury instructed that the substitution of other notes was not a payment of the one thousand dollar note, and that Murphy could not claim to be credited with more than was actually paid.

We are of the opinion that the Court of Common Pleas committed no error in negativing the defendant’s proposition. A mere exchange of one evidence of debt for another is no extinguishment of the debt itself unless it clearly appears that such was the intention of the parties.

Where there is evidence that it was so intended, it is a question of fact for the jury ; but here there was none, and the defendant has no cause or complaint, if he is allowed all he has actually paid.

To avoid any further difficulty the Court below should require Eckel to deliver to Murphy the Moore note before he is permitted to issue an execution on this judgment. When this is done and the judgment paid there is nothing left for further litigation between these parities arising from the contract of January 6, A. D., 1848.

Judgment affirmed.

Note. — This ease had previously been taken to the Supreme Court and reported in 3 Harris, 488.  