Stockbridge v. Damon

22 Mass. 223

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1827
• Status: Published

Opinion

The opinion of the Court was drawn up by

Parker C. J.

This note was dated in December 1818, and was payable on demand. It came to the hands of Clark, for whose use the action seems to be brought, in December 1824. It was therefore entirely discredited,¹ *and Clark must have taken it subject to any defence which the defendant could make against Graves the promisee. Whether Clark knew that it had been paid, or that Damon had demands which he could set off against the note in Graves’s hands, is immaterial, for having taken the note six years after it was given, he took it subject to every risk.² But there was sufficient evidence for the jury to find that Clark knew that Damon had claims against the note and intended to contest payment of it. The conversation sworn to by Smith when Clark was present, but more especially the tenor of the plaintiff’s receipt for the note to Clark, shows an apprehension, if not a belief, on the part of Clark, and of the plaintiff also, that nothing would be recovered of Damon. The jury therefore rightly found that the indorsement to Clark was invalid, it appearing in the case that Graves was indebted to Damon much beyond the amount of this note, and that by this indorsement he was deprived of the power of setting off his de mand against "Graves.

Judgment according to verdict.

*

1 See Bayley on Bills, (Phil, and Sewall's 2d ed.) 135, 137 ; 3 Kent’s Comm. (3d ed.) 91 ; Spring v. Lovett, 11 Pick. 419.

2 See 3 Kent’s Comm. (3d ed.) 90, 81; Napier v. Elam, 6 Yerger, 103 ; Hunt v. Sanford, id. 387 ; Sargent v. Southgate, post, 316, 317.

See Sargent et al. v. Southgate, post, 312; [Peabody v. Peters, ante, 4 n. 1.]