Atlas Shoe Co. v. Bloom
95 N.E. 952
Mass.
1911
Check Treatment
Braley, J.

The defendant Abraham Bloom signed the guaranty dictated in his presence, and upon which the bill is brought, although the master finds that he did not understand its terms because of his limited intelligence and inability to read our language. But the plaintiff held out no inducements, and he could have refused to sign until the contents had been translated or fully explained to him, or, if deceived by the representations of his son that the undertaking only made him responsible for a small bill of goods to be delivered in the future, there is no statement that the deception was instigated or participated in by the plaintiff. In the absence of fraud practised upon him, the defendant comes within the general rule, that mere ignorance of the contents of an instrument which a party voluntarily executes is not sufficient ground for setting it aside if ultimately the paper is found to be different from what he supposed it to be. Rice v. Dwight Manuf. Co. 2 Cush. 80. Leddy v. Barney, 139 Mass. 394. Freedley v. French, 154 Mass. 339, 342.

But if he cannot avoid the effect of his signature, the guaranty in terms included not only goods to be furnished, but payment of any past indebtedness due to the plaintiff from Bernard E. Bloom, and as the guaranty formed no part of the original credit, the consideration of the original debt would be insufficient to support the promise. Cabot v. Haskins, 3 Pick. 83, 93. Tenney v. Prince, 4 Pick. 385. The plaintiff endeavored to supply this essential element, and the master reports, that, the plaintiff having informed the son before the guaranty was given “that to make his account good it must be changed to a consigned account and his present indebtedness guaranteed,” and “ that his account must be protected and that unless he could get it guaranteed by a responsible person the plaintiff would have to close it,” and that the defendant signed after this last statement had been communicated to him. The master, while he does not specifically state that the defendant obligated himself to preserve *568the credit of his son, finds that no goods were furnished under the guaranty, and no action was brought against the son on the past account until some six months had elapsed. If the only consideration was a continuous credit in the future, it had failed, as no goods were delivered, and the failure of consideration would discharge the guarantor. Cooper v. Joel, 1 DeG., F. & J. 240. But if the words “ that his account must be protected ” can be treated as a promise by the plaintiff to forbear to press collection of the debt, followed by an actual forbearance for a reasonable time, even if no time was named, there would have been a sufficient consideration to support the guaranty, notwithstanding the master also reports that no money was paid to the defendant nor any promise made to him of any money consideration. Lent v. Padelford, 10 Mass. 230. Walker v. Sherman, 11 Met. 170. Johnson v. Wilmarth, 13 Met. 416. The “ protection ” of the account, however, was the giving of security for its payment, and there was no express statement, or even an implied understanding upon the facts stated in the report, that suit would be brought if a guarantor was not promptly furnished.

While the contract, therefore, was not binding as an undertaking to pay the accrued account, the guaranty furthermore named no amount, and the burden of proof as the master correctly held rested on the plaintiff to offer competent evidence in support of the allegations of the second paragraph of the bill.* Tenney v. Prince, 4 Pick. 385. The master found, that the plaintiff failed to establish that Bernard E. Bloom was indebted to it at the date of the guaranty, and its exceptions to the report so far as argued relate to the exclusion of evidence, which it contends if admitted would have proved a sale and delivery of the goods.

The admissions, of Bernard E. Bloom, in the absence of the defendant, that he had received goods to the amount named in *569the account then presented to him were made after their alleged delivery, and, not having been communicated to the defendant, were correctly held to be inadmissible. Evans v. Beattie, 5 Esp. 26. Dawes v. Shed, 15 Mass. 6, 9. McKim v. Blake, 139 Mass. 593, 594.

The plaintiff also offered in evidence its books of account, kept in the usual course of business, as proof of the sale and delivery of the goods. Costello v. Crowell, 133 Mass. 352, 355. Kaiser v. Alexander, 144 Mass. 71, 78. If apparently there was no dispute as to whom credit was given, and the suppletory oath of the witness under whose supervision the books were kept was sufficient to prove the entries, the report states, that the entries were transcribed from temporary memoranda, and the clerks who made the memoranda had no knowledge of the sale and delivery, except upon information received from other clerks whose duties are not shown. The goods were sold and delivered by the plaintiff’s servants, who were not called as witnesses, and, however elaborate or perfect the system may have been, neither the supervisor nor the entry clerks were possessed of such personal knowledge as would enable them to support the charges and prove delivery. Kent v. Garvin, 1 Gray, 148. Gould v. Hartley, 187 Mass. 561. The books of account not having been of themselves competent evidence, and the knowledge of the plaintiff’s witnesses being derived solely from the entries appearing in them, the ruling of the master, that the books were not admissible, must be sustained. Kent v. Garvin, 1 Gray, 148. Miller v. Shay, 145 Mass. 162. Gould v. Hartley, 187 Mass. 561. Allwright v. Skillings, 188 Mass. 538, 541.

If through inadvertence the plaintiff neglected to offer evidence which would have supported its claim, it should have moved to recommit the report,* but having failed to *570prove either a valid guaranty, or any liability of the defendant under it, the hill cannot be maintained.

Decree affirmed.

Notes

The allegations of the second paragraph of the bill were as follows : “ On "or about September 24, 1908, the said B. E. Bloom defaulted payment of the account due the plaintiff, and on or about September 25,1908, and the plaintiff duly demanded that the defendant Abraham Bloom pay the amount due from the said B. E. Bloom to the plaintiff, which, at that time, amounted to $1,993.42. The defendant Abraham Bloom, in response to said demand, stated that he was unable to pay the amount at that time, and asked for an extension, which the plaintiff refused to grant.”

The plaintiff in his brief had argued as follows : “ Whether the above evidence [as to the book accounts] should be admitted or not, there are not sufficient facts before the court to grant the plaintiff’s third prayer [which was that the equity of the defendant Bloom be sold and the debt to the plaintiff paid from the proceeds] in its present terms; but the case may be referred back to the master with instructions to determine what is due the plaintiff, or the first two prayers [that conveyance or foreclosure by Ziskend be enjoined and that the conveyance by the defendant Bloom be declared fraudulent] may be granted and the amount of liability left to be fixed by the common law suit now pending, and above referred to.”