Emerson v. Gerber, 178 Mass. 130

Emerson v. Gerber

178 Mass. 130 | Mass. | 1901

Holmes, C. J.

This is an action upon an admitted debt, and the only defence is that the plaintiff accepted a check for a part of the debt from an assignee for the benefit of creditors under circumstances which made it a discharge of the whole. The assignment provided that all creditors assenting to it thereby discharged their claim against the debtor. Notice of the assignment had been mailed to all creditors with a statement that those who wished to receive dividends must assent to the assignment. In the agreed statement of evidence it appears that the assignee would testify that he sent with the check a blank release, purporting to be under seal and to release the *133debt upon receipt of a dividend of twenty-five per cent. But by mistake the check was for considerably less than twenty-five per cent, and the plaintiff would testify that he had no recollection of having received the release. In short, there is nothing sufficient as matter of law to compel the judge to whom the.evidence was submitted to find that the plaintiff understood that he was receiving the check in discharge of his whole claim. Thus the defence fails at the outset on the facts before we reach any question of law.

As the check of the assignee was not received as the obligation of a third person but as representing the money into which it immediately was to be and was converted, and as that money was understood to be and was the proceeds of the debtor’s property, it is hard to see how in any event the receipts of it alone could have prevented the creditor from suing to recover the rest of his debt. Curran v. Rummell, 118 Mass. 482. Whether the money could be recovered, if the creditor repudiated the condition on which it was paid, is another matter. See Trecy v. Jefts, 149 Mass. 211; Bruce v. Anderson, 176 Mass. 161, 162. But more than a simple receipt of the check with knowledge of that condition would be required to bring in the peculiar doctrine of the Massachusetts cases as to the effect of an agreement which forms part of a composition in which several creditors join. Farrington v. Hodgdon, 119 Mass. 453, 457. Perkins v. Lockwood, 100 Mass. 249, 250. Compare Cottage Street Methodist Episcopal Church v. Kendall, 121 Mass. 528; Sherwin v. Fletcher, 168 Mass. 413.

Exceptions overruled.