Assumpsit, upon the common counts, and also upon a count alleging that the defendant drew an order in the plaintiff’s favor upon one Rutherford, which Rutherford refused to accept, whereupon the defendant promised to pay the plaintiff the amount thereof. Facts found by a referee. March 1, 1871, the defendant, being indebted to the plaintiff, gave him a negotiable order on Rutherford, who at that time was solvent, and owing the defendant enough to pay the order.
Good law ✅— No negative treatment on recordhow we know
Decided 1881-06-05
How this case has been cited
Cited by 7 later decisions — most recently April 1903
7 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶1
The plaintiff received the order as collateral security merely, both in fact and in law. This being so, the material question at the trial was, whether he had been guilty of laches in respect of it so as to make himself chargeable therewith. To make him thus liable, it was necessary to show negligence on his part and consequent injury to the defendant; for the settled rule is, that a party receiving collateral securities is not, in the absence of payment, chargeable with their amount, unless he has so improperly conducted with them that their value has been lost or impaired to the party of whom he received them.
Kenniston
v.
Avery,
16 N. H. 117, 120, and cases cited;
Lawrence
v.
McCalmont, 2
How. 426;
Robinson
v.
Hawksford,
9 Ad. & E. 52; Sto. Pr. Notes,
s.
284.
¶2
Whether the plaintiff so conducted with the order in question, and, if so, whether the defendant was thereby injured, the referee improperly neglected to find; and it being no part of the duty of the court, at the law term, to decide questions of fact
(Lefavor
v.
Smith,
58 N. H. 125), the report was for this reason recommitted. The referee now reports that the plaintiff was guilty of negligence in not collecting the order, but whether the defendant sustained any loss therefrom is not definitely stated. We infer, however, that the referee intends to find that the defendant’s negligence was the proximate cause of the loss resulting to him from the failure to collect the order. If this construction is right, the ruling at the trial term was correct. If it is not right, the defendant can apply to the referee for a more specific finding, and if one is obtained, judgment will be rendered at the trial term accordingly; but in either case no questions of law are raised by the report, and the entry is,
