Barry v. Curley

88 N.E. 437, 202 Mass. 42, 1909 Mass. LEXIS 797

• Court: Massachusetts Supreme Judicial Court
• Decided: May 20, 1909
• Status: Published

Opinion

Morton, J.

The sole question in this case is whether what took place between the plaintiff and the auditor of the Transportation Company upon receipt by the latter from the plaintiff of the amount of the Transportation Company’s demand against the defendant operated as a payment and satisfaction of it or as an assignment of it. If the amount was tendered and received as a payment it extinguished the demand. Whether it was so tendered and received or not depended on what the understanding was at the time when the Transportation Company received the money. If the amount was then tendered and received as a payment, no afterthought or subsequent understanding could revive the demand in the plaintiff’s favor, though if it was tendered and received for an assignment the parties could afterwards agree that it should be regarded as a payment. We think that there was evidence warranting a finding that an assignment and not a payment was intended and that the money was so paid by the plaintiff and so received by the Transportation Company.

In the first place the language of the receipt was peculiar. It was not a receipt of the sum named as payment of the freight and charges, as would have been more natural if the sum named had been taken in satisfaction of the demand, but it was a receipt of the sum named as “ covering ” freight and charges. This was or could be found to have been more consistent with-an assignment than a payment having been intended. Again, in answer to questions put by the presiding judge, the plaintiff, though saying at first that he had no talk with the auditor before paying the money about the assignment that was subsequently sent to him, finally said that he thought that before he paid the money to the auditor he explained the situation to him “ and that he was to get an assignment of the Company from Baltimore.” It is true that later he modified this somewhat. But it was for the jury to say what weight should be given to his testimony. It could not be ruled as matter of law, we think, that it did not warrant them in finding, as they did, that the Transportation Company made a valid assignment to the plaintiff.

Still further, the circumstances under which the plaintiff apparently became liable to the Transportation Company were such as to render, it not unreasonable to say the least to suppose that the Transportation Company desired to assist him so far as it properly could and for that reason intended the transaction to take the form of an assigment rather than of a payment.

The result is that according to the terms of the report judgment will be entered for the plaintiff for $298.80 with interest from the date of the writ.

So ordered.