# Akron Welding & Spring Co. v. Commissioner

> United States Tax Court · April 29, 1948 · 10 T.C. 715

URL: https://www.frixlaw.com/law-library/cases/4472145

## Case

- **Full name:** The Akron Welding and Spring Company v. Commissioner of Internal Revenue
- **Court:** United States Tax Court
- **Decided:** April 29, 1948
- **Citations:** 10 T.C. 715; 1948 U.S. Tax Ct. LEXIS 207
- **Precedential status:** Published
- **Opinion:** Dissent by Disney
- **Judges:** Disney,Disney
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4472145

## Opinion text

Disney, J., dissenting: I am impelled to dissent from the majority opinion. I find nothing in the facts to justify the conclusion that the notes involved were given in payment of the antecedent debts. The general rule on the point is stated in 48 C. J. 610, as follows:
The rule obtaining in most jurisdictions is that, in the absence of agreement or consent to receive it as such, a draft or bill of exchange, although accepted by tlie drawee, or a promissory note of the debtor, or his acceptance of a draft or bill of exchange drawn upon him, does not in itself constitute payment or amount to a discharge of the debt * * *.
The above statement is supported by several columns of citations, including some from Ohio, the state of the situs of the matter here involved. In A. Leschen & Sons Rope Co. v. Mayflower Gold Mining & Reduction Co., 173 Fed. 855 , it was said, by the Circuit Court of Appeals for the Eighth Circuit, in the headnote:
An agreement that a debt shall be paid, or that it has been paid, by the note of the debtor, is a contract for an extension of time, and that the debt shall be paid, or lias been paid, by tlie note on condition that the note is paid.
In the body of the opinion, the court said, citing many cases, including several in the Supreme Court and the Federal courts:
The acceptance by a creditor of the promissory note of his debtor for his antecedent debt does not extinguish it, unless the note is paid. It is not an absolute, but a conditional, payment of the debt. * * *
The court continued:
A clear agreement by the creditor that he will take the risk of the payment of the note and that the debt is discharged thereby, or the indubitable intention of both the parties to that effect, is requisite to extinguish a debt by the taking of the debtor's note.
Then, referring to the fact in that case that the contract provided that $4,200 “should be paid by the note of the mining company,” it was said:
* * * The ordinary meaning of that term was that the debt should be paid by the note on condition that the note was paid, but should not be extinguished otherwise, and the common and customary meaning of an expression is to be preferred to an unusual and ingenious interpretation of it. * * *
An Ohio case on the point is Nunn v. Hubacher, 158 N. E. 9 . Therein an heir accepted a note from her brother for the amount due her out of the estate, and it was held that by such acceptance she was not bound, “in absence of special stipulation and agreement that acceptance of note was in payment of face thereof.”
In the light of what I consider well settled law, nothing appears in the facts in this case to indicate such definite agreement as is requisito to make payment out of mere acceptance, by the acceptance of a note. 1, therefore, respectfully dissent.
Murdock, Arnold, and Le Mire, JJ., agree with this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4472145. Public record. Not legal advice.