274 Mass. 254 | Mass. | 1931
This is an action of contract. The declaration is in two counts, the first alleging that the Robinson Shoe Manufacturing Company owed the defendants on an open account $12,151.06; that in consideration of $4,000 paid to the defendants by the plaintiff the defendants made an assignment of said account to the plaintiff; that thereafter the defendants collected from the said Robinson Shoe Manufacturing Company the balance of said account and retained the proceeds thereof refusing to pay them to the plaintiff. The second count is for money had and received. The answer is a general denial. In the Superior Court the case was tried to a jury. At the conclusion of the evidence the plaintiff presented a motion that upon all the evidence a verdict be directed in its favor. The motion was allowed subject to the defendants’ exceptions. The trial judge reported the case to this court upon the following terms agreed to by the parties:
The evidence warranted the jury, in finding the following facts: In November, 1924, the Robinson Shoe Manufacturing Company, a copartnership, was indebted to the defendants, a copartnership, in the sum of $12,151.06 on an open account, and on the same date was indebted to the plaintiff, a corporation, in the sum of $10,000. Arthur Robinson, a partner in and representing the Robinson Shoe Manufacturing Company, told Junius Oliver Beebe, assistant treasurer of the plaintiff corporation, that “ there was a suit threatened by the . . . [defendants] against him unless he did something to take care of that open account”; that “one of the means by which he proposed to take care of the demand of the Wason. Company was to get $4,000 from the plaintiff.” Beebe testified that it was for the plaintiff’s interest to keep the Robinson Shoe Manufacturing Company going with the hope that it would be able sometime to pay the plaintiff the $10,000 then owed and that it might meet its obligations in the ordinary course of business. The plaintiff assented to Robinson’s suggestion that $4,000 of the plaintiff’s money should go over to the Wason Heel Company in return for an assignment of the open account of Robinson Shoe Manufacturing Company. The evidence warranted the further finding that the sole purpose of the plaintiff in giving Robinson the $4,000 check was not to enable the Robinson Shoe Manufacturing Company to go along unhampered by the demands of the Wason Heel Company, i.e. the plaintiff had another and additional reason,-which was that the account to be assigned was worth more than the price the plaintiff was asked to pay for it, and that it expected to realize on it in excess of the $4,000 because it believed the $12,000 open account could be collected.
The evidence would have warranted the jury in finding a somewhat different state of facts, such being that the defendants brought an action upon their claim against the Robinson Shoe Manufacturing Company, made an
The evidence warranted the further finding that the defendants on the receipt of the $4,000 took the keeper out, and that Robinson, since the assignment was taken, has paid the plaintiff $4,000 and $1,481.90, and the balance of the account he paid the defendants without the plaintiff’s knowledge. As respects the payment to the defendants, the evidence warranted the finding that the Robinson Shoe Manufacturing Company on February 27, 1925, gave to the defendants the instrument which follows: “We, the undersigned, agree to the following pay
The evidence warranted the more specific finding that between November 14, 1924, the date of the assignment, and February 27, 1925, the date of the instrument above quoted, the Robinson Shoe Manufacturing Company paid the defendants $2,000 in addition to the $4,000 received from the plaintiff; that at the time of the delivery of the agreement, supra, over $6,000 remained unpaid on the $12,000 account; and that thereafter the Robinson Shoe Manufacturing Company paid the defendants weekly $100 until April 21, 1926. The evidence warranted the further finding that the reason the Robinson Shoe Manufacturing Company paid the defendants was because it did not want them to lose anything on the account and wanted to pay them in full, notwithstanding the assignment to the plaintiff, and Robinson told the defendants at the
If the jury should find on the facts that the assignment was taken to protect the Robinson Shoe Manufacturing Company and that the $4,000 paid was in effect, and was intended to be, a loan to that company, it is plain its debt was extinguished with its payment of the $4,000 as against the defendants and the plaintiff; and if the debt were extinguished as to the Robinson Shoe Manufacturing Company the plaintiff perforce of the assignment had no right thereafter to demand of the defendants any money which the Robinson Shoe Manufacturing Company should pay the defendants in pursuance of its promise to pay them, notwithstanding their assignment of the account. On the other hand, if the jury on the evidence found, as they properly might do, that the “ open account ” was sold to and bought by the plaintiff for itself and not for .the use and protection of the Robinson Shoe Manufacturing Company, then it is obvious that the plaintiff was entitled to recover as for money had and received to its use the amount of the agreed damages, $9,700. We think the inferences of fact which properly could have been drawn by the jury might reasonably have resulted in a verdict for the defendants, and further think the evidence should have been submitted to the jury with proper instructions. It follows from the terms of the report that judgment is to be entered for the defendants.
So ordered.