Davis v. H. S. & M. W. Snyder, Inc.

248 Mass. 387 | Mass. | 1924

Wait, J.

The facts set out in the first eighteen paragraphs of the agreed statement show that the defendant (hereinafter called the debtor) owed the plaintiff’s intestate (hereinafter called the creditor) commissions to the amount claimed; that it requested instructions in regard to the method of payment desired by the creditor; that it received instructions to place the amounts due in the National City Bank of New York (hereinafter called the bank) and to advise the creditor of the amounts deposited; that it did place the amounts with the bank, and did advise the creditor forthwith of the amounts.

The issues presented upon these pleadings are the existence of the indebtedness and of the payment. The indebtedness is admitted. We hold that the payment is proved. We do not decide whether or not any cause of action arose against the debtor in consequence of the other events described in the agreed statement of facts. We confine ourselves to the case set out in the pleadings.

The fact that the name of the creditor spelled “ Tockel ” in the declaration, was spelled “ Tockle ” and not “ Tockel ” in the correspondence with the bank does not defeat compliance with the creditor’s order, or prevent that compliance from having its legal effect as a payment. It is perfectly clear that by “ Tockle ” the debtor intended to indicate the creditor. It is impossible not to believe that the minds of the debtor and of the bank met on the creditor, the person for whose benefit the payment to the bank was being made: “ Tockle ” or “ Tockel ” — that person was “ our agent at Moscow, Russia.”

“ The orthography and pronunciation of proper names are arbitrary; and errors in spelling, if the sound is not changed, are never fatal.” Morton, J., in Colburn v. Bancroft, 23 Pick. 57. To American ears “ Tockle ” and “ Tockel ” sound alike. Indeed on the records of the bank the spelling was used indifferently, as shown by paragraph 26 of the agreed statement.

The debtor placed the amounts due with the person indicated by the creditor and it advised the creditor it had done so. That was all the creditor then requested. When that was done, the debt was gone, — the debtor was released from the obligation to pay.

It is immaterial on the agreed facts that the transfer of the money to the bank was made by check. The bank in fact got the money before any objections or complaint was made. The cases cited by the plaintiff, Illustrated Card & Novelty Co. v. Dolan, 208 Mass. 53, 54, Taylor v. Wilson, 11 Met. 44, 51, Small v. Franklin Mining Co. 99 Mass. 277, do not apply here. The case resembles rather the cases of Nineteenth Ward Bank v. First National Bank of South Weymouth, 184 Mass. 49, and Hecker-Jones-Jewell Milling Co. v. Cosmopolitan Trust Co. 242 Mass. 181. The bank’s method of accounting does not concern the debtor. Nor was he concerned with the question, whether or not the creditor had an account at the bank, or whether the creditor had given instructions at the bank.

The debtor did not retain any control of the amount transmitted. The letter of July 14, 1917 (paragraph 13), shows an intent to pay “ our agent Mr. M. A. Tockle, Moscow, Russia.” The words, “or to our order until further notice,” do not indicate an intention to maintain dominion or ownership in the debtor, but rather an indifference to the way in which the bank chooses to deal with the amount for the creditor. The debtor regards it that “ payment has been made,” which is inconsistent with further dominion over the money.

The intent of the debtor in writing that letter was material. If it were written with an intent to maintain control over the amount transmitted, then, without regard to the words used to convey the intent to the bank and however they be construed, such intent would deprive the transfer of its effect as a payment. To constitute payment, the transfer of the money to the creditor or his appointee must be absolute, must leave the debtor without power to take back the money without some authority from the creditor. Where intent is a material fact, the person whose intent is in question may testify to the fact, even though such testimony is self-serving.

Where, however, evidence of the intent with which a document is written is sought to be introduced to qualify or affect the construction to be given to unambiguous language actually used in the document, there it is inadmissible. Paragraph 46 is admissible for the first purpose indicated. It is not admissible, and it has not been considered, for the second purpose.

In the view we take of the law, the facts set out in paragraphs 19 to 45, both inclusive, are irrelevant, immaterial and technically incompetent. In arriving at our conclusion, nevertheless, we have given them consideration.

Judgment for the defendant.