Mack v. Clark

42 Mass. 423

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1840
• Status: Published

Opinion

Shaw, C. J.

The plaintiff shows a prima facie title to the note, by proving the signature, indorsement, and delivery to him. The action is defended in behalf of Bailey, Poor, & Richardson, former creditors of Grout & Davenport, The evidence tends strongly to show that the note in question was made under an agreement between Grout and the creditors of his firm, that it should be indorsed and delivered to them, upon a compromise, and that, as between Grout and them, there was a good consideration in the relinquishment of other security. But the defendants were not privy to that agreement. On the contrary, they undertook to pay Grout or his order, in one year, without any limitation. It was no doubt contemplated, by the parties to the arrangement, that when Grout obtained the note he would indorse it and deliver it to Bailey & Co. ; and it may be that it was a violation of his agreement, and the trust, reposed in him, not to do it. Still, until that act was done, Bailey & Co. acquired no interest in the note as a legal security; noi did the defendants come under any legal obligation to them. But the plaintiff, having acquired a legal title, and the defendants having no ground to resist it, it is immaterial whether the plaintiff took the note before or after it fell due.

Defendants defaulted.