Lockwood v. Twitchell

146 Mass. 623 | Mass. | 1888

Morton, C. J.

This bill of exceptions is brief and obscure. It states that the defendant Eliot “ offered to prove that said Lockwood is suing for the benefit of one Jotham Twitchell, and as his agent or trustee ; that the note in suit was signed by said Eliot in the name of his firm of George W. Twitchell & Co., at the request of said Jotham Twitchell, and to enable him to raise money from said Lockwood, which was done to be given to said Jotham Twitchell’s son, the principal defendant, George W. Twitchell, and to be used by the latter for his own private purposes.” We treat the case as if Jotham Twitchell were the plaintiff, having in some way become the owner of the note. If the offer of proof could be construed as meaning that the defendant Eliot signed the note for the accommodation and benefit of Jotham Twitchell, it would be a defence. But to sustain the defence that a note was signed for the accommodation of the plaintiff, it must appear that it was given for his benefit, and upon an express or implied promise that he would hold the maker harmless on the note. If it have this character, then, as between the plaintiff and defendant, it is without consideration. Corlies v. Howe, 11 Gray, 125. Kellogg v. Barton, 12 Allen, 527.

But it is not enough for the defendant Eliot to prove that he signed the note for the accommodation of George W. Twitchell at the request of Jotham Twitchell. In the absence of any agreement, the law will not imply a promise by Jotham Twitch-ell to indemnify the defendant, from the mere fact that he requested the defendant to sign the note for the accommodation of George W. Twitchell. The note was good in the hands of any bona fide holder ; Jotham Twitchell was not a party to the note, and if he became the holder, he can enforce it. As we construe the exceptions, the offer of proof does not go far enough to constitute a defence. We cannot fairly enlarge the words “ at the request of said Jotham Twitchell,” so as to make them mean that the note was signed for his accommodation.

This construction of the exceptions is fortified by the fact that the answer does not allege that the note was signed for the accommodation of Jotham Twitchell. It alleges that the defendant Eliot “ signed the note as surety for his co-defendant,” and that he was induced to sign it by the fraud of the nominal plaintiff and of the two Twitchells.

We are therefore of opinion that the ruling of the Superior Court was correct. Exceptions overruled.