Samson v. Thornton

44 Mass. 275

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1841
• Status: Published

Opinion

Shaw, C. J.

Assumpsit on a promissory note, against the defendant as indorser, who, not being the payee of the note, if liable at all, must be held to stand in the character of an original joint promisor and surety. Hunt v. Adams, 5 Mass. 358. 6 Mass. 519. Many cases have since been decided upon the same principle. But to charge an indorser on this ground, it must appear that he was an original promisor and undertaker with the principal. If after a note is delivered, and the contract complete, a person, intending to add to the strength of the note by pledging his own credit, should indorse it, this would be a guaranty, a distinct and collateral contract, and would require a new consideration to support it. Whereas, an original promisor and surety is deemed in law to participate in the original consideration, and to be bound jointly with the principal. This distinction is perfectly well established in this Commonwealth, by the decisions which were cited by the defendant’s counsel. The only question, therefore, on this part of the case, is, whether the defendant was such original promisor, or whether he became an indorser afterwards, so that, if bound at all, he was bound only as a guarantor. It appears that Russell was indebted -to the plaintiff in the sum of $ 1600 or $ 1700, being the amount due to the plaintiff, as master of a vessel, on settlement of a whaling voyage. The plaintiff received one note for $ 600 at 60 days, which he got discounted at a bank, and it was paid at maturity by the promisor. For the balance, the note in question was given, payable on demand with interest. Russell made out the plaintiff’s account, and signed the note in question for the balance * he then handed them to Samson, and he took them away. I' is stated by the witness, that at that time he manifested no dissatisfaction ; but it is not stated that he agreed to accept the note without other security. If he took these papers, not as upon a fina, and concluded settlement, but for a general purpose, as for inquiry and examination, then he would not be bound by the mere act of receiving them ; and that lie did thus take them provisionally is to be inferred from the fact that he soon came back, and expressed his wish to have a surety. And that it was so understood by Russell may fairly be inferred from the readiness with which he received back the note to obtain an indorser. In this respect, the case differs from the late case of Ilsley v. Jewett, 2 Met. 168, where the note had been delivered and accepted, and where the maker got it back into his possession, for a special purpose, and then refused to redeliver it. It was held to be a good and complete contract notwithstanding. It was delivered by one party and accepted by the other, and the promisee never consented to give it up.

But there is another view. Suppose wdien Samson brought the note back, and though delicately, yet actually, asked for a surety, Russell had said “ no, the note has been accepted, and the account is settled, and you are -bound by it.” Suppose he was right in that respect, and might have refused to take back the note ; yet in fact he did not do so, but, on the contrary, acceded to the proposal, and took the note back. He had no motive to do otherwise, because the plaintiff held the note on demand, and had the same power to demand and compel payment or security for the note, which he would have had for the account, if it had not been settled by note. But we consider that by acceding to the plaintiff’s request, and taking back the note, in order to furnish the plaintiff with a surety or indorser, the part.es by mutual consent rescinded that contract, so far, as to treat the negotiation as still open, and when the note was indorsed and redelivered, it was the original contract of both the promisor and indorser, made upon the same consideration ; and that the defendant became liable, as such promisor and surety without any new consideration.

But there was another ground of defence, namely, that the note had been paid and satisfied by the principal, by the convey anee of a lot of land. That there was an agreement for such a conveyance in satisfaction of the note seems to be established by proof; but the question is, whether it was in fact conveyed so as to operate as a satisfaction. Russell testified that he agreed to convey, and the plaintiff to purchase, a lot of land at $ 30 a rod, which would considerably exceed the amount of the note, and that the note was to go in part pay.

It is necessary, for the purpose of deciding this question, to compare the dates. The deed bears date May 31st 1833. It was acknowledged December 26th 1833, and was recorded December 30th 1833. The plaintiff went on a voyage to sea August 1833, and returned in February 1836. The attachment of the land, by the Marine Bank, as the property of Russell, was made on the 26th of January 1835. The question is, whether the title was at that time vested in the plaintiff, so that he could resist that attachment and the levy of execution afterwards made in pursuance of it. It is very clear, that the deed was not delivered to the plaintiff before he went to sea, and that it was not completed. The witness gives as a reason for it, that the quantity of land had not been ascertained by admeasurement, and of course the amount of the purchase money was not ascertained. But it was not acknowledged till December 1833, long after the plaintiff had gone, and it was then in the hands of the grantor. He then, having become embarrassed, acknowledged the deed without inserting the consideration, and sent it to the county registry. This was the grantor’s own act. A deed takes effect by delivery. An execution and registration of a deed, and a delivery of it to the register for that purpose, do not vest the title in the grantee. Nothing passerby it. Maynard v. Maynard, 10 Mass. 456.

This is distinguishable from the case of Hedge v. Drew, 12 Pick. 141, where the father proposed to the daughter to execute a deed to her, and to leave it with the register for her use, and she expressed her assent to, and satisfaction with, the arrangement. She thereby made the register her agent to receive the deed. Here was no agent to accept the deed, no delivery to give the deed effect as a conveyance, and no ratification rntil long after the attachment was made.

The fact that Russell entered the note as paid, in his notebook, proves nothing more than his opinion. He no doubt intended honestly to comply with his agreement, and convey the land, and did what he could to accomplish. it; and probably thought that he had legally done it. If he was right in this belief, the note was paid ; he probably thought so, and entered it accordingly.

On the whole, the court are of opinion, that the defendant was an original promisor, that the note was not paid by a valid conveyance of the land, and that the plaintiff is entitled to judgment.

Judgment for the plaintiff.