Wolfboro Loan & Banking Co. v. Rollins

81 N.E. 204, 195 Mass. 323, 1907 Mass. LEXIS 1297

• Court: Massachusetts Supreme Judicial Court
• Decided: May 14, 1907
• Status: Published

Opinion

Knowlton, C. J.

The plaintiff, a banking corporation established in New Hampshire, is the holder, for a valuable consideration, of the note declared on, signed by the defendant as a surety. Under c. 162 of the Public Statutes of New Hampshire, an assignee of the plaintiff’s property and effects was appointed by the court, who thereby became the holder of the legal title to all this property. In the Matter of the White Mountains Bank, 46 N. H. 143. Hall v. Bracket, 60 N. H. 215.

The first defence set up is that an action cannot be maintained in the name of the plaintiff. This defence is not well founded. Even if the assignee, with his statutory title in a foreign State, could not have maintained an action in this State in his own name, there is no reason why he could not cause an action to be brought in the name of the corporation. Hayward v. Leeson, 176 Mass. 310. Homer v. Barr Pumping Fngine Co. 180 Mass. 163. Wilson v. Welch, 157 Mass. 77. Campbell & Zell Co. v. Barr Pumping Fngine Co. 182 Mass. 304. An action can be maintained in the name of the payee of a note, without regard to the question who is the owner of it. Spofford v. Norton, 126 Mass. 533.

The discharge in bankruptcy of the principal upon the note does not affect the liability of the surety. U. S. St. 1898, c. 541, § 16. Guild v. Butler, 122 Mass. 498. Cochrane v. Cushing, 124 Mass. 219. The provision in the note that “ the sureties agree to be liable without notice, so long as there is any liability of the principal, although the bank may grant extensions from time to time for the payment of all or any part of this note,” is not a limitation of the liability of the sureties, but an agreement in advance that the time for payment may be extended without discharging them from liability.

Exceptions overruled.