Weston v. Chamberlin

61 Mass. 404

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1851
• Status: Published

Opinion

Metcalf, J.

The court are of opinion that the evidence offered by the plaintiff was wrongly rejected. As between the defendant and the holders of the note, he was liable only as third indorser, after such proceedings had by them as are required by law to charge him in that relation. And the argument for him now is, that the relation between him and the plaintiff is to be ascertained from the note alone. But the authorities are decisive, that the plaintiff ought to have been permitted to prove that, as between him and the defendant, they were, by virtue of a collateral agreement, co* sureties of the Ashuelot Manufacturing Company; although they were, as between themselves and the holders of the note, first and third indorsers. It is not a valid objection to such collateral agreement, that it was oral only. Proof of such oral collateral agreement does not contradict nor vary the written agreement. The two are distinct. Phillips v. Preston, 5 Howard, 278; Harris v. Brooks, 21 Pick. 195; Carpenter v. King, and M’ Gee v. Prouty, 9 Met. 511, 547; 2 Amer. Lead. Cas. (1st ed.) 154, 164. New trial ordered.