117 Mass. 10 | Mass. | 1875
This is a case of a deposit of personal property by a debtor in the hands of a creditor as collateral security for the debt. If it presented merely the ordinary incidents of a pledge, it would be manifest that the action could not be maintained. The destruction of the property is conceded to have been accidental, without fault or neglect of duty on the part of the defendants.
But the claim of the plaintiff is, that the transaction differs widely from an ordinary pledge, and he contends that, by the terms of a written contract, the defendants have taken upon themselves a special liability of a much more extensive character. If, in the common case of a pledge, the common law contract
It is said that the written instrument declared upon is a receipt, and as such is open to explanation. It is true that it is a receipt, but it is also a promise clearly expressed. Brown v. Cambridge, 3 Allen, 474. We see no way to avoid the conclusion that the plaintiff’s construction of that promise is correct. The difficulty with the defendants’ case is, that, although their purpose was to take collateral security for a debt, the terms in which they have expressed themselves as to what they are to do with the pledge on the payment of the debt contain a positive and unequivocal promise either to return it, or to pay an equivalent. The fact that one part of this alternative promise has become impossible of fulfilment does not relieve them from the other. Chit, on Con. (11th Am. ed.) 1061. Stevens v. Webb, 7 C. & P. 60. State v. Worthington, 7 Ohio, 171. Exceptions overruled.