Draper v. Weld

Massachusetts Supreme Judicial Court

Draper v. Weld

79 Mass. 580

CourtMassachusetts Supreme Judicial Court

DecidedSeptember 15, 1859

StatusPublished

Cited by1 cases

This text of 79 Mass. 580 (Draper v. Weld) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Draper v. Weld, 79 Mass. 580 (Mass. 1859).

Pincite

Opinion

Metcalf, J.

The court are of opinion that Stevens ought not to have been permitted to testify — for the purpose of showing that he put his name on the note with authority to fill up the blank with a guaranty only — to what Weld said to him when he (Weld) went into the hotel at Fiskdale. This [585]*585evidence would undoubtedly have a strong bearing on the minds of the jury upon the question whether the note was signed before it was delivered to the plaintiff. But for this purpose, so far as the plaintiff was concerned, it was hearsay testimony. It is said that it was restricted to “ the purpose of showing that the defendant put his name on the note with an authority to fill up the blank with a guaranty only.” But the answer is obvious, that if the defendant gave the note to Weld with his signature in blank, any limitation of the authority to fill up the blank could not affect the right of the plaintiff, to whom it was passed in that condition. For this reason, if there were no other, a new trial must be granted.

The court are also of opinion that the jury were wrongly . instructed that giving time to McGregory, by the plaintiff, until January 1st 1858, for payment of the note, would prevent a recovery against Stevens. If, as between McGregory and Stevens, they were cosureties of Weld, the giving of time to one of them did not discharge the other, because the mere giving of time to one of two obligors, whose obligations are equal, will not discharge the other. Dunn v. Slee, Holt N. P. 399, and 1 Moore, 2. Burge on Suretyship, 156. Giving time by oral agreement to McGregory cannot have any greater legal effect than a covenant by a creditor not to sue, for a specified time, one of two or more joint debtors. Such a covenant is not a release, and it furnishes no defence to the other debtors. Lacy v. Kynaston, 12 Mod. 551. Dean v. Newhall, 8 T. R. 168. Shed v. Pierce, 17 Mass. 628. Wilson v. Foot, 11 Met. 285.

Exceptions sustained.

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Metcalf, J.

The court are of opinion that Stevens ought not to have been permitted to testify — for the purpose of showing that he put his name on the note with authority to fill up the blank with a guaranty only — to what Weld said to him when he (Weld) went into the hotel at Fiskdale. This [585]*585evidence would undoubtedly have a strong bearing on the minds of the jury upon the question whether the note was signed before it was delivered to the plaintiff. But for this purpose, so far as the plaintiff was concerned, it was hearsay testimony. It is said that it was restricted to “ the purpose of showing that the defendant put his name on the note with an authority to fill up the blank with a guaranty only.” But the answer is obvious, that if the defendant gave the note to Weld with his signature in blank, any limitation of the authority to fill up the blank could not affect the right of the plaintiff, to whom it was passed in that condition. For this reason, if there were no other, a new trial must be granted.

The court are also of opinion that the jury were wrongly . instructed that giving time to McGregory, by the plaintiff, until January 1st 1858, for payment of the note, would prevent a recovery against Stevens. If, as between McGregory and Stevens, they were cosureties of Weld, the giving of time to one of them did not discharge the other, because the mere giving of time to one of two obligors, whose obligations are equal, will not discharge the other. Dunn v. Slee, Holt N. P. 399, and 1 Moore, 2. Burge on Suretyship, 156. Giving time by oral agreement to McGregory cannot have any greater legal effect than a covenant by a creditor not to sue, for a specified time, one of two or more joint debtors. Such a covenant is not a release, and it furnishes no defence to the other debtors. Lacy v. Kynaston, 12 Mod. 551. Dean v. Newhall, 8 T. R. 168. Shed v. Pierce, 17 Mass. 628. Wilson v. Foot, 11 Met. 285.

Exceptions sustained.

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Bluebook (online)

79 Mass. 580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/draper-v-weld-mass-1859.

Opinion

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