
    Francis Marston vs. Edmund Boynton & another.
    Where money is lent on the credit of the borrower, though a third person, debtor of the borrower, signs a promissory note for the amount of the money, and the lender receives the note, yet if such note is not paid when due, he may maintain an action against the borrower for money lent.
    Indebitatus assumpsit to recover the sum of $260, money lent. Trial in the court of common pleas, before Warren, J., who reported the case as follows:
    “The plaintiff introduced testimony tending to prove, that in July 1841, Lyman W. Centre was transacting business in Boston, and was indebted to the defendants, who were in partnership ; that • he had become embarrassed, and that his property was attached by Glover & De Wolf; that under these circumstances he went to the State of Maine to see the plaintiff, and with a view of forming a connection in business with him ; that Centre and the plaintiff returned to Boston together; that while Centre was thus absent, Swasey (one of the defendants) called upon Centre’s clerk, and requested him to let him (Swasey) know when Centre returned; that after Centre’s return, and while he and the plaintiff were together, Swasey was sent for and joined them; that Swasey, having before this understood that the plaintiff had some money with him, said, at this interview, that he had ‘ some money to make out that day, and should be glad if he ’ (the plaintiff) ‘ would let him have it; ’ that the plaintiff took out three packages of money, amounting in the whole to $260, laid them on a table, and they were passed to Swasey; that Swasey then wrote two notes for $260 each, one payable to Centre, which he signed in the name of his firm, and the other payable to the plaintiff, which Centre signed, and which Swasey then tendered to the plaintiff; that the plaintiff said, ‘ this is not the right way of doing the business,’ to which Swasey replied, that he would make it all right; that if the plaintiff and Centre did not go into business, and the attachment of Glover & De Wolf was not withdrawn, he would pay the money back; and that the plaintiff then received Centre’s note. The evidence tended to show also, that Swasey did not deliver to Centre the note signed :>■ the name of the defendants’ firm, but in lieu thereof, gave him a receipt for the $260.
    “ The jury were instructed, that the plaintiff, to entitle him self to a verdict, must satisfy them that the money was lent by the plaintiff to the defendants ; that if the credit was given to Centre, even if the plaintiff was induced to give that credit by a promise of Swasey that he would repay the money upon certain conditions; or if such credit was given by the fraudulent procurement of the defendants, the plaintiff would not be entitled to recover in this form of action ; that the acceptance of Centre’s note by the plaintiff, for the amount lent, raised a presumption that the credit was given to Centre, but that this fact was not conclusive; that the jury would look at all the circumstances of the transaction, and if they were satisfied that the parties, at the time, understood that the loan was made to the defendants, and upon their credit, they (the jury) should return a verdict for the plaintiff; otherwise, for the defendants. A verdict was returned for the plaintiff. To these instructions the defendants excepted.”
    
      H. H. Fuller, for the defendants.
    The instructions were incorrect; for if the plaintiff accepted Centre’s note, it was payment, although the money might have been lent on the defendants’ credit. Besides; the plaintiff, having taken the note, was bound to show, before he could recover on a count for money lent, that the note was dishonored. Chit. Con. (5th Amer. ed.) 766, 768, 770.
    
      The plaintiff should have declared on a conditional promise, and averred that the conditions had been conformed to; or, at least, should have proved that fact, before he could recover on the count in his writ. Whitcomb v. Williams, 4 Pick. 228. Cornwall v. Gould, 4 Pick. 444. Wood v. Bodwell, 12 Pick 268. As the note was taken on account of the loan, the plain tiff should have shown diligence in attempting to collect it. Biidges v. Berry, 3 Taunt. 130. The case was put to the jury solely on the question whether the loan was made to the defendants ; and the effect of the instructions and verdict is to render the giving of the note entirely nugatory.
    
      B. Sumner, for the plaintiff.
    The legal presumption from the verdict is, that all the facts, necessary to the plaintiff’s recovery, were proved; and, if necessary to the recovery, that the plaintiff used due diligence to collect the note, and that the plaintiff and Centre did not go into partnership, and that Glover & De Wolf’s attachment was not withdrawn. The instructions were warranted by the case of Tufts v. Seahwru, 11 Pick. 142.
   Shaw, C. J.

The court are of opinion that the directions of the court of common pleas were right. The court instructed the jury, first to inquire whether the loan was made by the plaintiff to the defendants, on their credit; and there was evidence to warrant the jury in finding that it was so made. If it was, then, by operation of law, the defendants became bound to repay the money, and the note of Centre, received of them by the plaintiff, was merely collateral security. If then it is set up by way of defence to an action to recover the money lent, that such note was taken, it may be answered by proof that the plaintiff, without laches of his own, has realized nothing f-om the note; that it has become due, and is unpaid; that it has not been negotiated, and is now brought in, to be surrendered to the defendants. It being the duty of the maker to pay it without special demand, the production of the note, overdue and unpaid, is de facto proof of dishonor.

The case might present a different question, if it were a note with indorsers, and the responsibility of the indorsers had been lost by want of due diligence; or if the defendants should prove, that with ordinary care the note might have been collected, and, through the laches of the plaintiff, was not.

But it was excepted, and was relied on at the argument, that the promise of the defendants was conditional, and that the jury should have been instructed, that the plaintiff could not recover without proving that Glover & De Wolf did not withdraw their attachment, and that the plaintiff and Centre did not go into partnership. This would undoubtedly be true, if the credit had been given to Centre ; if he was the principal debtor; and if the plaintiff had no claim on the defendants, but by force of their conditional promise. But if the credit was given to them, then they were liable, not on their conditional promise only, but on their implied legal obligation, as debtors, to repay the amount lent to them. This was the question left to the jury; and the court instructed them, that the acceptance of Centre’s note raised a presumption that the credit was given to him, and not to the defendants; but that it was a presumption of fact, which might be rebutted by other evidence ; and it was left to them on the whole evidence.

It was further excepted to the instructions of the court of common pleas, that the jury should have been directed, that the acceptance of Centre’s note was a payment. In Massachusetts, it is held that the acceptance of a negotiable note is prima fade evidence of payment; but it is so held, because such is the pre sumed intention and understanding of the parties. But it is open to proof that it was not so intended and understood ; and then it is not evidence of payment. Here the question was, in effect, submitted to the jury ; because, as the note of Centre was delivered to the plaintiff, at the same time when the loan was made, if it was intended to be on the credit of the defendants, and not of Centre, then his note was not understood and intended to be a payment of the loan ; and this question the jury, on the evidence, decided in favor of the plaintiff.

Exceptions overruled.  