This is a suit in equity to reach and apply
It is open to the defendants to argue that the specific findings of the judge necessarily preclude his general conclusion. Birnbaum v. Pamoukis, 301 Mass. 559, 562. Harlow Realty Co. v. Whiting, 308 Mass. 220, 223-224. Wilkins v. Berkeley Realty Corp. 311 Mass. 148, 151. Searls v. Standard Accident Ins. Co. 316 Mass. 606, 607, 610. Compare Druker v. Druker, 308 Mass. 229, 230.
These findings were: On February 25, 1943, Dame purchased an automobile from the Simons Sales Company of South Norwalk, Connecticut, and as part of the consideration executed a note for $1,271.85 and a conditional sale contract, which for value were immediately assigned to Eastern by the Simons Sales Company. As part of the transaction Dame procured from Colonial “a $50,deduc-tible collision policy,” payable to Eastern and Dame as their interests might appear. On February 28 the automobile was damaged in a collision to the extent of $653.50, of which $603.50 was due under the policy. Under date of March 22, 1943, Colonial made out a draft, payable through a Hartford bank, on acceptance by Colonial, to the order of Eastern and Dame for $603.50, reciting on its face “which payment is to be accepted, as evidenced by the proper endorsement hereon, in full settlement, final satisfaction and discharge of all claims and demands for loss
The ruling that the draft was not a negotiable instrument was right. “An instrument to be negotiable . . . must contain an unconditional promise or order to pay a sum certain in money.” G. L. (Ter. Ed.) c. 107, § 23, cl. 2. Conn. Gen. Sts. (1930) § 4318. Here liability was made conditional upon acceptance. Berenson v. London & Lancashire Fire Ins. Co. 201 Mass. 172. This is apart from the requirement that a certificate be attached.
The decree for the plaintiff, based upon the finding that there was an estoppel, must stand. “Whether an estoppel has been established usually presents an issue of fact.” Stern v. Lieberman, 307 Mass. 77, 82, and cases cited.
The fact that the certificate was not attached, or the fact, if it be a fact, that the draft was not accepted, does not assist Eastern. These formalities were prescribed for its own benefit by Colonial, which, as we view the finding, now stands ready to pay the amount to such party as is determined to be entitled thereto. Abbruzise v. Sposata, 306 Mass. 151, 153-154, and cases cited. The present case is distinguishable from Berenson v. London & Lancashire Fire Ins. Co. 201 Mass. 172, where the insurance company denied that there had been any binding adjustment of the loss. Here Colonial stands in effect as a stakeholder of a sum admittedly due. It is not open to Eastern, which enabled Dame to defraud the plaintiff, either to set up conditions available exclusively to Colonial, which Colonial could, and on the findings did, waive; or to assert that all was a nullity until the moment when Colonial might consent formally and absolutely to be bound. Eastern took the risk that Colonial might not insist upon the conditions and might choose to recognize the obligation. Moreover, even
There is nothing in Moore v. Spiegel, 143 Mass. 413, Dallinger v. Richardson, 176 Mass. 77, 83, Commercial National Bank v. Bemis, 177 Mass. 95, 99, Laprade v. Fitchburg & Leominster Street Railway, 205 Mass. 77, 79, or Cleaveland v. Malden Savings Bank, 291 Mass. 295, 297-298, in conflict with what we have herein held.
It would not be profitable to make further analysis to determine whether the plaintiff should prevail on the draft itself or on general equitable principles, nor do we consider the correctness of the ruling “that the plaintiff cannot recover by virtue of the draft.” The judge’s ultimate conclusion that the plaintiff was entitled to recover, if not required, at least is not necessarily precluded, by his other findings.
Decree affirmed with costs.