126 Mass. 516 | Mass. | 1879
It is a mistaken assumption on the part of the de-
fendant that the contract between these parties was contained in or expressed by the three notes described in the bill of exceptions. In the evidence offered by the plaintiff, he made no attempt to show that either of these notes was subject to any -mwritten condition, or was to be interpreted otherwise than according to the literal import of the words in which it was expressed. What he undertook to prove was, that, instead of indorsing a note for the plaintiff as he had requested, the defendant proposed to lend to the plaintiff the note of Power & Co., which the plaintiff was to get discounted without the defendant’s indorsement; in other words, that, instead of lending the money or Ms own mdorsement, he placed in the plaintiff’s hands a negotiable security upon which he himself might and did obtain the money that he was then in want of. He also undertook to prove that, as collateral security for this loan, he placed in the defendant’s hands the other two notes described in the bill of exceptions. This evidence was competent and admissible, and if it were believed by the jury, it would follow that, on returning the Power note to the defendant, the plaintiff would be entitled to take back and have returned to him the collateral security which he had previously deposited. Unless the plaintiff had himself done some act which would have the effect to release either the promisors or the indorsers upon the Power note, the only loss which the defendant could suffer would arise from the insolvency of those promisors and indorsers,—a loss fo wMch the plaintiff could not be responsible. With regard to the plaintiff’s own note, he might by this evidence show a failure of consideration. If the two other notes were deposited with the defendant simply as collateral security for the loan, as described by the plaintiff, the appropriation of tMs security by the defendant to Ms own use was a wrongful act on Ms part, and he might justly be held accountable in this action as for money had and received which equitably belonged to the plamtiff.
Exceptions overruled.
