| Mass. | Dec 7, 1881
The plaintiff brought an action of contract to recover the sum of $1078.14. The defendants admitted his claim, and filed a declaration in set-off for $1189.84, containing two counts, alleged to be for the same cause of action; the one for the price of a promissory note of E. A. Mudge & Co. for that sum, sold and delivered by the defendants to the plaintiff; and the other on a promissory note signed by the plaintiff, the material part of which was as follows: “ Boston, December 15, 1876. $1189.84. Borrowed and received of Bush, Wood, Pinkham & Co. eleven hundred eighty-nine dollars, which I promise to pay on demand, with interest.”
At the trial in the Superior Court, without a jury, the following facts were undisputed: On December 13, 1876, the defendants sold to the plaintiff a note of E. A. Mudge & Co. for $1189.84, and received therefor from him after bank hours his
As to what took place at this interview between Pinkham and the plaintiff their testimony was conflicting. Pinkham testified that he handed the check to the plaintiff face up, and said to him, “ The check which we received for your draft was not paid; would like you to give me your borrowed and received for it.” Pinkham also testified that at that time he knew, and did not tell the plaintiff, that Bates & Albee had failed. The plaintiff testified that Pinkham said to him. “ Tour draft was not paid, would like your borrowed and received for it; ” that he signed the note supposing that he received his own draft in return; that he had had dealings with the defendants for several years, and supposed it was all right; that Pinkham handed him the check of Bates & Albee back up, and he put it in his pocket-book Avithout examining it, and did not discover that it was not his own draft until he called upon Bates & Albee a few minutes afterward to inquire why the draft had not beeh paid. The plaintiff further testified, and it was conceded by the defendants, that from the time he gave the draft
The court, at the request of the plaintiff, ruled “ as matter of law, that, by the defendants’ course of dealing with said draft and check, the plaintiff was discharged from liability to the defendants in respect thereof and the original consideration therefor, and that the defendants could not maintain their declaration in set-off, unless upon said borrowed and received as a new promise made under full knowledge of the facts and that the plaintiff had been so discharged.”
The plaintiff further requested the court to rule “ that there was no sufficient evidence in the case to support the defendants’ declaration in set-off on said borrowed and received, or on any new promise, and that the defendants’ declaration in set-off could not be maintained upon the evidence.” But the court refused so to rule, and “ found it to be a fact that as to the interview between Pinkham and the plaintiff it was as stated by Pinkham, and not as stated by the plaintiff, and that the plaintiff gave said borrowed and received voluntarily and with full knowledge and under no mistake,” and found for the defendants in the sum of |186.20, being the excess of the amount due from the plaintiff to the defendants over the amount due from the defendants to the plaintiff including interest. To this refusal to rule as requested by the plaintiff, and to the findings of the court, the plaintiff alleged exceptions.
This court cannot indeed revise the decision of the court below on the comparative credibility of witnesses or other matter of fact. And the surrender of the check of Bates & Albee might be a sufficient legal consideration for the promissory note
The draft drawn by the plaintiff on Bates & Albee, having been received by the defendants after business hours on December 13, was seasonably presented to the drawees on December 14; and if it had been dishonored on that day, the defendants might, by giving notice of the dishonor to the plaintiff on the next day, have held him liable upon the draft. But neither they nor their agent, the Bank of the Commonwealth, could by accepting from the drawees their check in lieu of money prolong the plaintiff’s liability as drawer; and by holding that check, without presenting it for payment, until December 15, they discharged him from such liability. Whitney v. Esson, 99 Mass. 308" court="Mass." date_filed="1868-03-15" href="https://app.midpage.ai/document/whitney-v-esson-6415345?utm_source=webapp" opinion_id="6415345">99 Mass. 308. Smith v. Miller, 43 N.Y. 171" court="NY" date_filed="1870-12-13" href="https://app.midpage.ai/document/smith-v--miller-3592624?utm_source=webapp" opinion_id="3592624">43 N. Y. 171.
On December 15, when the , defendants obtained from the plaintiff his promissory note for the amount of the draft, the case (assuming the truth of Pinkham’s testimony) shows that the defendants knew, and the plaintiff did not, of Bates & Albee’s insolvency, and of the delay of the defendants in presenting the check for payment. In other words, the plaintiff, when he made the new promise, had not only no knowledge of the insolvency of Bates & Albee, but had no knowledge, and no reason to believe, that, instead of the draft having been dishonored .on December 14, (in which case he would be liable to pay it,) the defendants, by receiving the check of Bates & Albee, and retaining it until December 15, had discharged him from liability "on the draft.
The plaintiff .therefore acted under a mistake as to a material fact; and the finding of the court below, that the plaintiff gave his promissory note voluntarily and with full knowledge and under no mistake, was unwarranted as matter of law, and for this reason his exceptions must be sustained. Garland v. Salem Bank, 9 Mass. 408" court="Mass." date_filed="1812-11-15" href="https://app.midpage.ai/document/garland-v-president-directors--co-6403948?utm_source=webapp" opinion_id="6403948">9 Mass. 408. Low v. Howard, 11 Cush. 268. Kelley v. Brown, 5 Gray, 108. New trial ordered.