92 Mass. 429 | Mass. | 1865
By the report of the auditor, which the parties have agreed to adopt as a statement of facts, it appears that the mortgage and note were made and delivered to the mortgagee, John Chamberlain, and that after his decease they were sold and assigned by his executors to the plaintiff. This establishes a prima facie case for the plaintiff.
The defendant relies upon the fact that when the mortgage and note were given he and John Chamberlain were copartners with the plaintiff and several other persons, by the name of the Dalton Woollen Company, and that the note was a partnership transaction; that therefore the plaintiff cannot maintain- this action, but must resort to a bill in equity, and can recover only what may appear to be due to him as a final balance from the firm.
But it appears that the firm was subject to certain liabilities for which judgments had been recovered and executions issued ; and upon these executions the defendant and several other members of the firm had been committed to jail; that John Chamberlain agreed to procure the release of the defendant and others and pay the executions, and this agreement was the consideration for which, so far as the defendant was concerned, he gave the note and mortgage in controversy. Other membeis gave
Upon the facts as stated in the case, the plaintiff is entitled to a conditional judgment.
