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The opinion of the court was delivered by

Redeield, J.

It is settled by the case, Lovejoy v. Whipple, 18 Vt. R. 379, that a promissory note written and signed on Sunday, will not on that account be void, if not delivered until some other day. It is therefore not necessary farther to discuss that question.

The only inquiry into the present case then, is whether this note was delivered upon Sunday. We cannot regard Benjamin N. Whitney as the agent of Franklin B. Goss, in procuring the defendant to sign the note, or in receiving it and carrying it to'Towle. In all this he must be regarded as a principal, acting solely upon his own responsibility. The note was intrusted to him, by the defendant, to do with it precisely as he chose. It would not therefore, become a binding contract upon the defendant, until delivered by the principal, Benjamin N. Whitney. And his delivery of the note must be regarded precisely in the same light as if the note were signed by himself, either alone, or jointly with the defendant. He might deliver it absolutely to Towle, to take effect presently as a promissory note, and in that case, it would no doubt have been regarded as having been delivered to Franklin B. Goss upon Sunday. But he might also annex conditions to the delivery, and make Towle his agent to see that those conditions are complied with, and in that case, the delivery would not become complete, until these conditions were fully complied with. That was the case here. And the note was not to go into the control of Frank- ‘ lin B. Goss, until he delivered a discharge of his claim against Whitney. This was the only condition, and the sole consideration upon which the note was to take effect. Thus it will appear very obvious, that neither the consideration of the note, nor the title of the note passed, until Monday or Tuesday after the Sunday upon which the note was written and signed. This alone would con*189stitute the delivery of the note as a binding contract. The note, therefore, could not be regarded as a contract fully executed upon Sunday, and is not therefore void, by reason of any provision of law upon that subject.

It will doubtless be borne in mind, that the restriction which Benjamin N. "Whitney put upon the delivery of the note to Franklin B. Goss, was under the circumstances, a very important one. Ordinarily the delivery of a note, to be received in payment of a pre-existing debt, would operate ipso facto to discharge the debt; but in the present case, if delivered upon Sunday, it would ijot have that effect, so that the formal discharge of the debt, upon some other day, formed a very important consideration of the note, and shows very clearly that the note to effect the purpose of the parties, either as to the note, or the pre-existing debt, must be regarded as taking effect at the time the discharge of the debt was exchanged for the note, with Towle, according to the direction of Benjamin N. "Whitney, Towle acting as the mutual agent of both parties.

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