McGregory v. McGregory

107 Mass. 543

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1871
• Status: Published

Opinion

Gray, J.

1. No question is made of the plaintiff’s right to recover upon the note set out in the first count of the declaration.

2. As to the notes described in the second, third and fourth counts, the plaintiff, although a guarantor, had the same right as any other person to take them up by paying the amount thereof to the holders and having them indorsed to himself. Pinney v. McGregory, 102 Mass. 186. Those counts state a good title in Mm as indorsee, and the omission to allege that he was also a guarantor is immaterial.

3. Destruction by fire is one mode by wMch property may be lost, and an allegation that a note has been lost is fully supported by proof that it has been destroyed by fire.

4. It is well settled in this Commonwealth, that an action at law may be maintained on a lost 'promissory note, whenever a bond of indemnity will afford complete protection to the defendant; and that such an action may be maintained against the maker of such a note, upon filing a sufficient bond of indemnity. All the makers of the notes described in these three counts are defendants in tMs action; and they do not stand like an indorser of a promissory note, who is entitled, upon taMng it up, to the possession thereof, in order that he may have Ms recourse over against the maker, or negotiate it again ; or like the acceptor of a bill of exchange, who may need it as a voucher in settling his account with the drawer. Fales v. Russell, 16 Pick. 315. Almy v. Reed, 10 Cush. 421. Boston Lead Co. v. McGuirk, 15 Gray, 87. Tower v. Appleton Bank, 3 Allen, 387. Tuttle v. Standish, 4 Allen, 481. Savannah National Bank v. Haskins, 101 Mass. 370.

5. Upon the plaintiff’s claim for moneys paid on the note indorsed by himself and Pinney, the defendants did not ask to have any question of fact submitted to the jury. The plaintiff’s testimony, (though somewhat confused,) taken in connection with the record of the action brought by Pinney against these defendants, showing that they had the benefit of the amount paid by this plaintiff upon the note, would warrant the jury in finding, as against them, that that amount was paid by the plaintiff by the hand of Pinney after the note had been dishonored and due notice thereof given to the indorsers and demand of payment made upon them. The plaintiff is therefore entitled to recover that amount as money paid to the defendants’ use. The judgment recovered by Pinney on the note was no merger of this cause of action. Pownal v. Ferrand, 6 B. & C, 439; S. C. 9 D. & R. 603. Butler v. Wright, 20 Johns. 367, and 6 Wend. 285.

Judgment on the verdict for the plaintiff.