Powers v. Mann

31 N.E. 10, 156 Mass. 375, 1892 Mass. LEXIS 225

• Court: Massachusetts Supreme Judicial Court
• Decided: May 9, 1892
• Status: Published

Opinion

Holmes, J.

The plaintiff sued upon a note made by the firm of Severance and Tappan while the defendant Mann was a member. Mann’s defence was that the firm was dissolved, that Severance and Tappan then agreed to pay the outstanding debts, including this note, that they subsequently went into insolvency, and that the plaintiff elected to prove against them, and thus discharged Mann by force of the Pub. Sts.- c. 157, § 125. The question tried before the jury was whether the plaintiff elected as alleged. It was not denied that the plaintiff proved against Severance and Tappan, or that subsequently his proof was expunged upon his own petition. But the plaintiff testified that when he proved he did not know of Severance and Tappan’s agreement to pay the debts of the old firm, and he sought to avoid the effect of his proof in that way.

When the record of the insolvency proceedings was put in, the plaintiff excepted to the introduction of so much of it as showed a petition that Mann be adjudged a member of the firm; which petition was heard and dismissed by the judge. We do not perceive what harm this evidence can have done the plaintiff. He proved on the footing that Severance and Tappan were properly in insolvency without Mann, and the judge decided that they were. The decision had no bearing on the question whether the plaintiff was ignorant, as he said, of their agreement to pay the firm debts.

Exceptions overruled.