It said that an agreement to receive the debtor's own note in payment must be expressed ; Porter v. Talcott, 1 Cow. (N. Y.) 359 ; Combination S. & I. Co. v. Ry. Co., 47 Minn. 207, 49 N. W. 744; Price v. Barnes, 7 Ind. App. 1, 31 N. E. 809, 34 N. E. 408: and when so expresSed it extinguishes the debt ; New York State Bank v. Fletcher, 5 Wend. (N. Y.) 85; Caldwell v. Hall, 49 Ark. 508, 1 S. W. 62, 4 Am. St. Rep. 64 ; Pritchard v. Smith, 77 Ga. 463; but if such be not the express agreement of the parties, it only operates to extend the period of the pay ment of the debt; Segrist v. Crabtree, 131 U. S. 287, 9 Sup. Ct. 687, 33 L. Ed. 125. Whether there' was such an agreement is a question for the jury ; Johnson v. Weed, 9 Johns. (N. Y.) 310, 6 Am. Dec. 279; Segrist v. Crabtree, 131 U. S. 287, 9 Sup. Ct. 687, 33 L. Ed. 125. Acceptance of an indorsed note of a debtor in payment for goods sold, merges and extinguishes the original debt ; Strauss v. Trotter, 6 Misc. 77, 26 N. Y. Supp. 20. But the giving of a void note for an in debtedness does not pay it; Hartshorn v. Hartshorn, 67 N. H. 163, 29 Atl. 406.
A bill of exchange drawn on a third per son and accepted discharges the debt as to the drawer ; 10 Mod. 37 ; and in an action to recover the price of goods, payment by a bill not dishonored has been held a good 'de fence; 4 Singh. 454 ; 5 Maule & S. 62.
Retaining a draft on a third party an unreasonable length of time will operate as payment if loss be occasioned thereby; Raymond v, Baar, 13, S. & R. (Pa.) 318, 15 Am. Dec. 603 ; Gallagher v. Roberta 2 Wash. C. C. 191, Fed. Cas. No. 5,195. Ana. Contr. 359. The receipt of a draft, in the absence of an express agreement, does not constitute a payment of the debt for which the draft is drawn; Stewart Paper Mfg. Co. v. Rau, 92 Ga. 511, 17 S. E. 748.
In the sale of a chattel, if the note of a third person be accepted for the price, it is good payment ; Rew v. Barber, 3 Cow. (N. Y.) 272; 1 D. & B. 291. Not so, how ever, if the note be the promise of one of the partners in payment of a partnership debt ; Horton v. Child, 15 N. 460.
In Maine and Massachusetts, the pre sumption, where a negotiable note is taken, whether it be the debtor's promise or that of a third person, is that it is intended as payment ; Maneely v. McGee, 6 Mass. 143, 4 Am. Dec. 105; Gooding v. Morgan, 37 Me. 419. The fact that a note was usurious and void was allowed to overcome this pre sumption ; Johnson v. Johnson, 11 Mass. 361. Generally, the question will depend upon the fact whether the payment was to have been made in notes or the receiving them was a mere accommodation to the purchaser ; Salem Bank v. Bank, 17 Mass. 1, 9 Am. Dec.. 111. And the presumption never attaches where non-negotiable notes are given ; Ed mond v. Caldwell, 15 Me. 340.
Payment may be made through the in tervention of a third party who acts as the agent of both parties : as, for example, a stakeholder. If the money be deposited
with him to abide the event of a legal wager, neither party can claim it until the wager is determined, and then he is bound to pay it to the winner ; 4 Campb. 37. If the wager is illegal, the depositor may reclaim the money at any time before it is paid over ; 8 B. & C. 221; L. & E. 424. And at any time aft er notice given in such case he may hold the stakeholder responsible, even though he may have paid it over; see 2 Pars. Contr. 138.
An auctioneer is often a stakeholder, as in case of money deposited to be made over to the vender if a good title is made out. In such case the purchaser cannot reclaim except on default in receiving a clear title. But if the contract has been rescinded by the parties there need be no notice to the stakeholder in case of a failure to perform the condition ; 2 M. & W. 244; 1 M. 8z R. 614.
A payment of a debt by a stranger with out the debtor's request, if accepted as such by the creditor, discharges the debt so far as the creditor is concerned, and also as to the debtor, if he ratify it ; Crumlish's Adm'r v. Imp. Co., 38 W. Va. 390, 18 S. E. 456, 23 L. R. A. 120, 45 Am. St. Rep. 872.
A transfer of funds, called by the civil law phrase a payment by delegation, is pay ment only when completely effected; 2 Pars. Contr. 137 ; and an actual transfer of claim or credit assented to by all the parties is a good. payment ; 5 B. & Ald. 228; Butterfield v. Hartshorn, 7 N. H. 345, 26 Am. Dec. 741; Heaton v. Angier, 7 N. H. 397, 28 Am. Dec. 353 ; Arnold v. Lyman, 17 Mass. 400, 9 Am. Dec. 154. This seems to be very similar to by drawing and acceptance of a bill of exchange.
Where a purchaser contracts to pEiy a certain amount in printing, the seller can not enforce the collection of such amount in cash, as a profit presumably attaches to the printing ; Allen v. Wall, 7 Wash. 316, 35 Pac. 65 ; unless, of course, the party de clines to pay in printing.
Foreclosure of a 'mortgage given to secure a debt operates as payment made when the foreclosure is complete ; but if the property mortgaged does not produce a sum equal in value to the amount of- the debt then due, it is payment pro tanto only; 2 Greenl. Ey. § 324 ; Amory v. Fairbanks, 3 Mass. 562; Case v. Boughton, 11 Wend. (N. Y.) 106. A transfer of a worthless mortgage in pay ment of a debt, does not discharge the debt where neither party at the time of the trans fer knew that the mortgage was worthless ; Walrath v. Abbott, 75 Hun 445, 27 N. Y. Supp. 529. A legacy also is payment, if the intention of the testator that it should be so considered can be shown, and if the debt was liquidated at the death of the testator; 1 Esp. 187 ; Strong v. Williams, 12 Mass. 391, 7 Am. Dec. 81; Williams v. Crary, 5 Cow. (N. Y.) 368; Blair v. White, 61 Vt. 110, 17 Atl. 49. See LEGACY.