Nichols v. Arnold

25 Mass. 172

• Court: Massachusetts Supreme Judicial Court
• Decided: April 6, 1829
• Status: Published

Opinion

Parker C. J.

delivered the opinion of the Court. The objection taken at the trial, to the testimony of the witnesses on the part of the plaintiff, has not been insisted on.

The evidence, we think, justifies the verdict; for it proves that both Whitwell, Bond and Seaver, and the plaintiff, acted under a mistake, in regard to the supposed guaranty of this note. It not being guarantied, the plaintiff’s right cannot be injured by the act of Whitwell, Bond and Seaver, in signing the indenture. The note was not discharged by it, they having no authority over it.

Nor do we think that the plaintiff is prevented, by any tnmg in the nature of an estoppel, from claiming the note as his property. It does not appear that the assignment was made, or any act done prejudicial to the defendant, in consequence of any declarations by the plaintiff in regard to the note.

The surrejoinder of the plaintiff, which is specially demurred to, is bad in averring two distinct and independent grounds in answer to the rejoinder, either of which is traversable, and would have been conclusive for the plaintiff if found in his favor. But the plaintiff may amend, on payment ol the costa °f that issue from the time of filing the surrejoinder.