295 Mass. 325 | Mass. | 1936
This is an appeal from the decree of a probate court allowing the first account of The Agricultural National Bank of Pittsfield as executor of the will of Giuseppe Faccioli. They are hereafter called respectively the accountant and the testator. The only question argued by the appellant is whether there was error in the allowance of a payment made by the accountant to itself of $2,783.79 on a note on which the accountant asserted the right to hold
The trial judge filed a report of material facts (G. L. [Ter. Ed] c. 215, § 11) in substance as follows: The instrument of guaranty was dated September 21, 1931, was addressed to the accountant, was signed and sealed by the testator and was in its body of the tenor following: “For value received, waiving notice and demand, I guarantee the payment of note or notes of A. B. Hendricks, Jr., amounting to Sixty Six Hundred Ninety Nine ($6699.00) dollars, secured by the following collateral •—
$250.00 G. E. Emp. Sec. Corp. Bonds
34 sh Electric Bond & Share Common
140 “ General Electric Company Common
15 “ General Electric Company Special
6 “ American Tel. & Tel. Company
It is understood that a similar guarantee is given by Mr. Chesney for notes of Mr. Hendricks of equal amount and secured by collateral equal in amount and kind.” On the same day one C. C. Chesney signed, sealed and delivered to the accountant an instrument of similar tenor, except that one item of collateral stated to be security for the Hendricks “note or notes” was less by one share of stock than in the instrument signed by the testator. Nothing turns on this difference. On that day the total collateral held by the accountant as security for the Hendricks notes consisted of the aggregate of the amounts of collateral mentioned in both instruments of guaranty. On that date the indebtedness of A. B. Hendricks, Jr., to the accountant amounted to $13,398.83, shown by two notes, one for $7,814.50 maturing September 22, 1931, and another for $5,584.33 maturing October 27, 1931. These notes were renewed from time to time. The testator died on January 13, 1934. About a month before that date the two notes were incorporated into one for $12,895, which fell due on February 1, 1934. That note was renewed from time to time in that amount until December 1, 1934. On December 31, 1934, two notes were taken, each in the sum of
The collateral thus sold by the accountant and the amounts received therefor are set forth in the findings, but as no argument has been directed to this point by the appellant it is not necessary to recite those findings or to deal with them. Apparently the entire remaining collateral attributable to the Hendricks indebtedness secured by the instrument of guaranty signed by the testator has been sold and credited. The contrary has not been argued.
The evidence has been reported in full. The findings of material facts made by the trial judge are set forth in the record. There is little if any conflict in the testimony. In these circumstances the findings will not be reversed unless plainly wrong or based on some error of law. Bowles v. Comstock, 286 Mass. 159, 167. Fenton v. Malfas, 286 Mass. 339, 341. Ashley v. Collins, 292 Mass. 67, 70. The liability of a guarantor is to be ascertained from the terms of the written instrument by which the obligation is expressed, construed according to the usual rules of interpretation in
The material conditions attendant upon the execution of the guaranty as disclosed by the testimony were that the testator, Chesney and Hendricks were intimate friends; Hendricks owed to the accountant the two notes already described; the collateral securing them had fallen in value below banking requirements; the indebtedness was of long standing; payment was being pressed by the holder of the notes unless additional collateral was deposited; Chesney and the testator met and had conversation touching the situation and the guaranty was signed by each; one of the notes was falling due the next day and the other about five weeks later; as matter of common knowledge a financial depression was in existence. The conversation between the testator and Chesney touching the giving of the guaranties was excluded by the trial judge, but the fact that there was such conversation was competent. See Sampson v. Sampson, 223 Mass. 451. In fact, the amount mentioned in each instrument of guaranty was stated with exactness and was in substance one half of the total indebtedness of Hendricks to the accountant on the notes, and the collateral therein mentioned was in substance one half of each kind of security deposited as collateral for both notes. The notes guaranteed are not specified in detail in the writing. They are described as “note or notes.” These words are generic rather than limited in scope. In these circumstances it is of no consequence that there were not in existence at that time or later notes or note of Hendricks of the precise amount mentioned
The duration of the guaranty is not stated in the writing. It may be assumed in such circumstances that the guaranty was intended to be of genuine help to Hendricks and was to be operative for a reasonable time. The fair inference is that the instrument of guaranty was designed to continue more than one day; otherwise it would afford no substantial relief to Hendricks, because one note matured the day after the date of this instrument. The further inference might also be drawn that renewals of and changes of form in the existing short term notes were intended to be covered by that instrument. Zeo v. Loomis, 246 Mass. 366, 368. Merrimac Chemical Co. v. Moore, 279 Mass. 147. The finding that the instrument was intended by the testator as a continuing guaranty was warranted by its words and by the relations of the parties to the transaction. The instant case on this point is quite distinguishable, both in the language of the guaranty and in the attendant conditions, from Sherman v. Mulloy, 174 Mass. 41; O’Brien v. Murphy, 175 Mass. 253; Keith v. Thomas, 266 Mass. 566, and other decisions upon which the appellant relies.
The contention of the appellant that the instrument of guaranty was discharged by the surrender of the old notes to the maker when other notes were given in renewal or substitution cannot be supported. While in general the taking of a negotiable note for a preexisting account or note is presumptively a discharge of the old debt and acceptance of the new note in place of it, that presumption does not arise if it appears that it will be for the benefit of the creditor that the old debt be kept alive. Cotton v. Atlas National Bank, 145 Mass. 43, 45. Freedman v. Peoples National Bank of Marlborough, 291 Mass. 168, 171. This, subject has
Cases like Jordan v. Dobbins, 122 Mass. 168, and Hyland v. Habich, 150 Mass. 112, where the attempt was made to hold the estate of the guarantor for indebtedness having initial existence after his death, are quite distinguishable. The case at bar is also distinguishable from Maglione v. Penta, 266 Mass. 413, where the guaranty was not a continuing one but confined to a specific instrument of indebtedness.
Nothing in the record requires a reversal of the finding as to the amount of the indebtedness due to the accountant from the estate.
No reversible error is disclosed.
Decree affirmed.