157 Mass. 175 | Mass. | 1892
The contract which the defendants made in this case was to pay the note to the person who might be its legal holder at the time of its maturity. From this contract they have been released by their discharge in insolvency, the note having been proved against their estate by its then holder. Pub. Sts. c. 157, § 26. St. 1884, c. 236, § 5, as amended by St. 1885, c. 353, § 1, and by St. 1889, c. 406, § 1. The fact that after the maturity of the note the payee was obliged to pay to its indorsee the balance due on the note after deducting the dividend received from the estate of the defendants, did not create a new debt against the defendants, but was merely a transfer of the old debt. The promise of the defendants was one indivisible promise. See Hunt v. Taylor, 108 Mass. 508; Cowley v. Dunlop, 7
The case differs widely from Thayer v. Daniels, 110 Mass. 345, where a surety under like circumstances to those in the case at bar was allowed to maintain an action against the maker of a promissory note. The undertaking of the maker to the surety is one of indemnity against any loss or damage which he may suffer in consequence of the failure of the maker to pay the note. It is an implied, and not an express contract. The contract of the maker, on the other hand, with the payee or indorser, is an express contract, from which in this case the makers have been released by their discharge in insolvency.
The plaintiff further contends, that, being a foreign corporation, its claim is not barred by the defendants’ discharge. Kelley v. Drury, 9 Allen, 27. Phœnix National Bank v. Batcheller, 151 Mass. 589. But as the plaintiff’s right of action grows out of the note, and as this has been proved against the defendants’ estate in insolvency, these cases do not apply.
Exceptions overruled.
