
    
      T. L. Quackenbush v. C. E. Miller.
    
    Plaintiff, as assignee, sued defendant as maker of a promissory note, which past due before it was transferred, and defendant claimed to be credited with the amount of a note which the assignor had given to a third person, (which was also past due when defendant’s note was assigned to the plaintiff,) and which defendant had agreed to pay as part of the note sued on; the Court held that the jury were properly instructed to allow the discount, if defendant had assumed to pay this note, and had been exclusively looked to and bound to pay it.
    
      Before Withers, J. at Charleston, May Term, 1849.
    The plaintiff, as endorsee, sued the defendant, as maker, upon the following note:
    “ Ashepoo, 19th April, 1845. — $452 85. Twelve months after date, I promise to pay John Shanahan or order, four hundred and fifty-two dollars, 85 cents, for value received.” Signed by defendant.
    Various credits reduced the balance due upon the note on the 29th September, 1847, to $ 121 78, the last credit being of that date.
    The defendant claimed a further reduction of $47 50, with interest, which, if allowed, would reduce the above balance, at the time stated, to $68 84. It arose in this way, as the evidence indicated: in March, 1846, Shanahan bought of Roberts a horse, saddle and bridle, for $47 50, and gave him the following note:
    “Ashepoo, S. O. 10th March, 1846. — Forty days after date, I promise to pay to captain F. Roberts the sum of forty-seven dollars and fifty cents, for a bay horse, saddle and bridle.”— On the back of this paper was written and subscribed by Miller, the defendant, as follows : “ Accepted, 1st April, 1846.” By Roberts’s testimony, it appeared that Shanahan directed him to take this last mentioned note to Miller and ask him to accept, saying Miller owed him between 3 and 4 hundred dollars, and would pay it out of that money. Roberts, accordingly, presented the note to Miller, on the 1st of April, its date, who accepted as above, and said he would pay it out of what he owed Shanahan. ■ On his return, Roberts met the latter and communicated to him what Miller had said and done, and he said he was satisfied, and Roberts told him he was also satisfied, as Miller had accepted. Roberts did not say to Shanahan that he did not longer hold him responsible, but he said he did not thenceforth or now look to him for payment. Miller had never, in fact, paid him the money; but last fall, and since the commencement of the action, had given him a due bill for the note of Shanahan, bearing date the 1st of April, 1846, and including another sum of $9, whereupon he had rendered up the note of Shanahan to Miller, who produced it on this trial.
    No doubt the note of Shanahan to Roberts was made and delivered and accepted by Miller before (he note sued upon fell due, while Shanahan, the payee, held it, and before it was transferred to the plaintiff. Nor was there any doubt that the note was transferred to the plaintiff after it had fallen due. The plaintiff produced the written testimony, confessedly delivered in confusion, to show that the note was transferred to Quackenbush as early as May 27, 1847, and that was more than a year after it became payable. In the first place, the plaintiff’s witness did affirm that to have been the date of Shanahan’s indorsement, and he said a memorandum of it had been made at the time. But he afterwards affirmed, as positively, that the credit on the note of 29th September, 1847, was there when it was tranferred to the plaintiff. Shanahan, he said, was to receive from the plaintiff $ 100, by way of credit, and some money bes.des for Miller’s note. He then spoke, vaguely, about an order, which, at some time, Shanahan had given to Roberts on Miller, for a pony, which, afterwards, Roberts had brought to him, represented it as of no account, directed him to tear it up, which, after having shown it to Shanahan, he did tear up. He had never heard of the note that Shanahan had given to Roberts for the horse, saddle and bridle. Roberts often called at the plaintiff’s store for Shanahan ; the parties were intimate.
    The charge to the jury was, that whatever Miller could show as a part payment of the note sued upon, against Shana-han, before he transferred it to the plaintiff, may be now set up against Quaekenbush, v/ho comes here occupying the condition of his endorsee as it existed at the time of the transfer of the note, in respect to any discounts which Miller could have established against Shanahan. If Shanahan had, then, sued Miller, and the latter could have shown an assumption for Shanahan for $47 50, for which Shanahan had received value from another, and was discharged, in consideration that Miller had assumed to pay it as in part of the note sued upon, and was exclusively looked to and bound to pay, Shanahan would have been held to submit to such discount. If the .transaction detailed really had been a juggle by Shan-ahan. to get the horse, saddle and bridle, by the use of the note, and also to sell the full balance of the note to the plaintiff, Miller, lending himself to the purpose, should not now be allowed his claim.
    The jury did allow it, and found a verdict for sixty-eight dollars, eighty-four cents, with interest from 29th September, 1847, for the plaintiff.
    Plaintiff appealed and moved for a new trial, on the following grounds:
    
      1. Because the defendant was not entitled to be credited with the amount of the note made by John'Shanahan, in favor of F. Roberts, either as a matter of discount or as a ment; for neither at the time of the endorsement of the cause of action by Shanahan to the plaintiff, nor at any time before the commencement of this suit, did the said defendant have any cause of action against said Shanahan by reason of said note, which could be set up in discount: and a mere assumption to pay the debt of Shanahan, without actual performance, could not be pleaded as a payment; and the Court should have so charged the jury.
    2. Because the verdict was, in other respects, contrary to the law and evidence.
    Northrop, for the motion.
    
      Seigling, contra.
   Curia, per Frost, J.

In Tatlock v. Harris, Buller, J. puts this case : suppose A owes B £.100, and B owes 0 £100, and the three meet, and it is agreed between them that. A shall pay C the £100, B’s. debt is extinguished, and C may recover that sum against A. In Wharton v. Walker the law, thus affirmed, was qualified and stated to be, that if by an agreement between the three parties, the plaintiff had undertaken to look to the defendant, and not to his original debtor, that would have been binding, and the plaintiff might have maintained an action on the agreement; but in order to give him that right of action, there must be an extinguishment of the original debt. And, so qualified, the rule was recognized in Corbett v. Cochran.

When Roberts told Shanahan what had been said and done by Miller, they mutually said they were satisfied, and Roberts told Shanahan that he did not thencefoith or now, look to him for payment. The jury were instructed to allow to the defendant, as a payment, the amount of Shanahan’s note to Roberts, if Miller had assumed to pay it as in part of the note sued on, and if Miller was exclusively looked to and bound to pay Roberts. The jury deducted from the plaintiff’s demand the amount due by Shanahan to Roberts ; and thereby affirmed the special agreement.

Roberts kept Shanahan’s note up to the time when this action was brought, and afterwards leceived payment from Miller. When Miller’s note was assigned to the plaintiff, it was past due, so that Miller had the same defences against the plaintiff which he would have had if Shanahan had sued ; and Shanahan’s note to Roberts was also past due when he assigned Miller’s note to the plaintiff; so that, then, Shanahan might have defended himself against any action on his note by any person, by showing payment according to the agreement proved in this case. Shanahan was, therefore, not liable to pay his note which Roberts held; and Miller was safe in paying it to Roberts. The rights and liabilities of Shanahan, Miller'and Roberts, under their agreement, were wholly unaffected by the fact that Roberts kept Shanahan’s note. This circumstance is, therefore, important only as it seems to be in conflict with the evidence, that Roberts was to look to Miller alone for the payment of Shanahan’s note.

The motion is refused.

Richardson, O’Neall, Evans and Wardlaw, JJ. concurred.

Motion refused.  