
    William Guilford, Resp’t, v. Morris C. Mulkin, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 12, 1895.)
    
    
      Í. Payment—Note.
    The giving of the purchaser’s promissory note for the price of the property sold, at the time of the sale, is not a payment.
    • 2. Same.
    If the note is not paid when due, the creditor can sue on the original obligation.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.
    
      S. McArthur Norton, for pl’ff; Rufus Scott, for def’t.
   Ward, J.

This was an action tried at the Allegany circuit in' January, 1894. The plaintiff’s complaint alleged the sale and delivery by him to the defendant on the 13th of September, 1886, of a pair colts of the value and agreed price of $255, to be paid for in three months, with interest; that the same had not been paid ; and plaintiff demanded judgment. The answer of the defendant, contained no general denial, but alleged that at the time of the sale' of the colts the defendant made and delivered, in satisfaction of the purchase price of the colts, to the plaintiff, the defendant’s, promissory note, whereby he promised to pay in three months the $255, with interest, and denied that he had agreed to pay for the colts in any other way than by the note. Upon the trial the plaintiff brought the note into court, and offered to surrender it to the defendant, and have it canceled. No evidence was given on behalf of the plaintiff, but the defendant testified in his own behalf, substantially, that, at the time he bought the colts, he gave the note set forth in the answer, and that it had not been paid. It did not appear that the plaintiff had negotiated the note. The plaintiff asked for the direction of a verdict for himself, and the. defendant moved for the direction of a verdict for the defendant.. Neither party asked to go to the jury. No.agreement was proved, that the plaintiff was to take the note in payment for the colts. The court directed a verdict for the plaintiff. The defendant alleges that the error was committed by the trial court because the only contract of payment made by the defendant was to pay the-note, and that the action should have been brought on the note, which was the plaintiff’s only remedy. This contention cannot be sustained. The giving of the purchaser’s promissory note for the price or the property sold, at the time of the sale, is not a payment. If credit is given upon the sale, which is evidenced by the-promissory note, the seller’s remedy is suspended until the note becomes due. The note is but a written security for the debt, and. only extinguishes it upon payment. The debt is not merged in the note. If the note is not paid when due, the security is dishonored, and the suspended time of payment ended, and the debt still remains, and the creditor can sue on the original obligation. These considerations apply where, as in this case, the security is not negotiated by the creditor. If the debtor claims that his written promise to pay accomplished the payment, he must show that his" promise has been performed. He cannot pay his debts with a broken promise. Whatever may be the rule in other states, or the views expressed by elementary writers upon this subject, the foregoing undoubtedly gives the law in this state. Iron Co. v. Walker, 76 N. Y. 521, 524, and cases cited; Edw. Bills & N. (2d Ed.) 192, and note; Hughes v. Wheeler, 8 Cow. 77; Hill v. Beebe, 13 N. Y. 556; Muldon v. Whitlock, 1 Cow. 290; Coombs v. Bateman, 10 Barb. 573. Both parties having asked for a direction of a verdict, the court determined any question of fact in the case, upon the evidence in the place of the jury; and, if there were any questions of fact, they have been determined against the defendant, who was the sole witness in his own behalf, and is conclusive here. The motion for a new trial should be denied, with costs to be paid by the defendant; and the plaintiff have judgment on the verdict.

All concur.  