¶1The plaintiffs declared in assumpsit upon a promissory note executed by the defendant to the plaintiffs, and also upon an assignment of a promissory note executed by the defendant to the plaintiffs, made by one Poster to the defendant.
¶2Plea, non assumpsit.
¶3The evidence showed that the plaintiffs commenced suit in due time upon the assigned note against the maker, and that such suit, by arrangement between the. maker and the plaintiffs, the assignees of the note, was dismissed, but to which arrangement the defendant, the assignor, was not a party, and that the note, by due diligence, could have been collected of the maker. From the evidence in support of the counts upon the note executed by the defendant to the plaintiffs, it appeared that the defendant, with said Foster as his security, made their joint and several promissory note payable to the plaintiffs, intended to be in settlement of the note executed by Foster to the defendant, and which he had assigned to the plaintiffs, and left the same with one Griffin, to be delivered to the plaintiffs, in settlement of the assigned note; that the agent of the plaintiffs refused to accept the note so. left with Griffin, and that the defendant, being informed of the refusal, took the note from Griffin’s custody and destroyed it.
¶4The note being left with Griffin as a mere depositary, having no power to act for the plaintiffs, could not take effect as a binding contract or promise without the consent or acceptance, express or implied, of the plaintiffs; and their consent and acceptance being rebutted by the evidence, no action could be maintained upon the instrument.
¶5The plaintiffs, under the evidence, were not entitled to recover.
¶6Judgment affirmed.