Amos v. Bennett

125 Mass. 120 | Mass. | 1878

Lord, J.

There seems to be no valid objection to the several rulings in this case. The case finds that Amos paid several debts, against the payment of which the bond in suit was given to him as an indemnity. In one case he borrowed the money, or a check upon which he was to receive the money, and paid the debt with the proceeds of the loan. In other cases he gave his notes, which were accepted as payment. In this Commonwealth, a negotiable promissory note given for a debt is,' in the absence of all proof, payment. A non-negotiable note is not payment. The defendant objects that it does not appear that the notes were negotiable. It is the duty of the excepting party - to make it appear that the exception is well taken. If a bill of exceptions is capable of two constructions, equally consistent with the other facts stated in the bill, the construction which sustains the ruling is to be deemed the true one. It is enough to say that it is, at least, as probable that the notes given were negotiable, as that they were non-negotiable. No question upon this point appears to have been made before the presiding justice at the trial; and it is not to be presumed that a rule of law so familiar was overlooked by the court and by the parties ; but rather that the point is now first raised here, upon the discovery that the bill of exceptions is susceptible of two constructions.

Nor can the objection, that the payment by Amos was a voluntary payment, prevail. The case from our own reports, Skillin v. Merrill, 16 Mass. 40, cited by the defendant in support of the objection, is decisive against it. In that case, payment was made by the surety before the liability was fixed, and the co-surety had made arrangements for the surrender of the principal, by which he would be relieved from all liability. In deciding it, Chief Justice Parker says: “ In the case of a voluntary payment of money actually due, to avoid a suit, there is no doubt that he who pays the money may compel his co-surety to contribute.” In the case at bar, it is found that the several amounts paid were absolutely due. The fact that the bond was assigned is an immaterial fact. Suit must be brought in the name of the assignor, and all defences are open to the defendant. There is no claim made that the bond had been released, discharged or satisfied. The only claim made is that the legal effect of the bond may be different from what the defendant expected when he entered into the obligation. Of course, this objection cannot prevail. When a party affixes his name to an obligation, he is bound by the legal construction of such obligation, not by any other construction which he attaches to it. If Amos had borrowed of a third party money for the special purpose of paying the debts of the partnership of Amos & Bennett, upon which he was liable, and with such money had paid the debts, there is no rule of law which would prevent the assignment of the bond to the lender as collateral to the loan. Between such a transaction and the facts in this case there is no difference in principle.

Exceptions overruled.