
    Nellie Beckwith, Respondent, v. Arla Burlingame, Appellant.
    (County Court, Oneida County,
    February, 1896.)
    1. Evidence — Proof of oral agreement where note is given.
    An oral arrangement was made between the parties whereby the plaintiff released her interest in a restaurant purchased from defendant, and the latter resold the same to a third person, and plaintiff took a note made by such third person and indorsed by defendant, which was not protested at maturity. In an action upon an alleged promise by defendant to pay the amount of the note, Held, that evidence was admissible to show the terms of the agreement of release, and that plaintiff refused to look to such third person and accepted the note for defendant’s accommodation, and on his agreement to pay it if the maker did not.
    3. Payment — Presumption from receipt of note of third person.
    The presumption arising from the receipt of the note of a third person at the time of the creation of the indebtedness, that it was received in payment, may be overcome by proof of a contrary agreement of the parties.
    Appeal from a judgment rendered by the City Court of Utica against defendant for $50 damages and $7 costs. Plaintiff and one Purvis had purchased from the defendant the furniture, etc., in a restaurant in Utica and plaintiff had made a payment thereon of . $50. The venture did not prove successful and no further payments were made. In the meantime a Mrs. Cummings applied to purchase the place. Plaintiff insisted as a condition to her going out that she must have back the $50 which she had paid. Defendant had offered to sell her interest for $250, and Mrs. Cummings agreed to pay $250. Plaintiff and some other witnesses testified that plaintiff refused to accept Mrs. Cummings’ note or to look to her for the $50, but was willing to release her interest if defendant would agree to pay the $50. Defendant, upon the other hand, denies that she agreed to pay the $50, but admits that she agreed to indorse Mrs. Cummings’ note for that amount. The negotiations resulted in a sale and plaintiff received I,he note of Mrs. Cummings indorsed by defendant. That note was not protested at maturity and defendant claims that she was discharged from liability thereby. Plaintiff testified that at the time the note was given, defendant told her that if Mrs. Cummings did not pay the note at maturity, to present the same to Mr. Avery, her attorney, and he would pay it. That at maturity she tried t<5 find Mrs. Cummings, and she was out of town and she was unable to find her. That she called upon Mr. Avery and notified him as directed. Plaintiff further testified that she received the note at defendant’s request for the purpose of giving her time to pay it, and that the agreement for renewal was annexed to the - note at. defendant’s request for a like reason.
    The complaint contained thre'e counts. On the trial the court compelled plaintiff to elect upon which count he would rely, and plaintiff elected to give proof and recover upon the $50 promisé of payment.
    Upon the evidence the court rendered the judgment above described.
    T. L. Cross, for appellant.
    ■ S. J. Barrows, for respondent.
   Dunmore, J.

So far as necessary to sustain the judgment, the-trial court is presumed to have.decided the disputed questions of fact in'favor of the plaintiff. The evidence is clearly sufficient to sustain the following findings:

1. That in consideration of plaintiff’s release of her interest in the property the defendant premised to pay plaintiff $50.

2. That plaintiff refused .to trust Mrs. .Cummings for the $50.

3. That the plaintiff accepted the note in question at the-defendant’s rbquest and for Her accommodation.

The appellant claims that parol evidence to establish the above facts was inadmissible, for the reason that it contradicted and was received to vary the terms of a written, contract by the note. . We do not think that rule applies. The contract of the sale or release of plaintiff’s interest was by parol. That is the contract which would by its terms determine who was to pay the plaintiff. • The note would not necessarily, and parol evidence of what the terms of that agreement were was, properly received. ■

The contract of sale or release by plaintiff was one independent collateral agreement, and parol eidence was competent to prove that, even though another agreement, viz., the note made at the same time, was in writing. Dodge v. Zimmer, 110 N. Y. 43, 49; Chapin v. Dobson 78 id. 74; Eighmie v. Taylor, 98 id. 288.

We think, therefore, that the judgment should' be affirmed unless the note was received by plaintiff in payment. If it was received in payment, the debt resulting from the promise would thereby be extinguished and defendant would remain liable only as indorser. .

It is a' well-established rule that the acceptance of the note of a third person by the creditor from his debtor does not operate as a satisfaction of the precedent debt, unless it be shown that such at the time was the agreement of the parties; but when, at the time of the creation of the indebtedness, the creditor received from his debtor the note of a third person, the presumption is that he received it in payment.. Noel v. Murray, 13 N. Y. 167; Youngs v. Stahelin, 34 id. 258.

That presumption in this case is rebutted by a contrary agreement of - the parties:

Plaintiff and also Mrs. Cummings testified that plaintiff refused to trust Mrs. Cummings for the $50.

Upon all the evidence this was a question of fact for the trial court, and this court is concluded" by that finding.

We do not discover that any rule of law was violated to the prejudice of defendant, and, therefore, the judgment must be affirmed, with costs.

Judgment affirmed, 'with costs.  