President of Wareham Bank v. Burt

87 Mass. 113 | Mass. | 1862

Hoar, J.

The rights of the parties to this action must be governed by the express terms of their written contract. The rule so clearly stated in Paradine v. Jane, Aleyn, 26, and so often cited, that “ when the party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract,” is directly applicable. Walton v. Waterhouse, 2 Saund. 422, n. Atkinson v. Ritchie, 10 East, 533. Barker v. Hodgson, 3 M. & S. 267. Beebe v. Johnson, 19 Wend. 500. Phillips v. Stevens, 16 Mass. 238.

The court below ruled that the attachment by the trustee process in Canada constituted a valid excuse for the non-performance of the defendants’ contract. But we are all of opinion that this ruling cannot be supported. The contract had no reference to the debt which the notes created. It was simply to carry and return those pieces of paper, or to bring back notes made in renewal of them. The defendants were not obliged to give them up to Stacy or Hibbard, without receiving at the same instant the new notes, which Stacy had agreed to give in exchange; and had no right to do so. The notes were the property of the plaintiff corporation, and there was nothing in the process served upon Stacy and Hibbard to justify their detention. The notes were not seized by the officers of the law, and any doubts which Hibbard might entertain as to the right of property in them, or in the debt of which they were the evidence, could not be a justification for refusing to deliver to the plaintiffs’ agent papers which had been borrowed for a moment for a specific purpose, .

There is a recognized exception to the rule that a party must perform his contract as he has made it, when the performance has become illegal. And we do not mean to decide that a seizure of these notes by legal process, or the lawful decree or order of a court in Canada, requiring that they should be retained within that jurisdiction, might not have furnished an excuse or justification for the omission to return them. But there was no process in rem affecting these specific pieces of paper; and no suit or process to which the plaintiff was a party, by which any of the property of the Wareham Bank was in any way affected. The case therefore stands just as it would if no trustee process had been served or issued; and the rights of the parties are the same as they would have been if Hibbard had retained the notes without setting up any pretence of authority.

The defendants have argued that the obligation of the common carrier terminated when the notes were presented to Hibbard for renewal, and would not again attach until the notes were returned to them, or new ones taken in exchange. But by the express agreement the notes were not to be delivered unless the new ones were received. The contract must be governed by the same rule as if the carrier had taken a note, with an express agreement that he would bring it back unless the money due on it was paid to him. It surely would not be any performance of his contract, nor sufficient excuse for failure to perform it, to say that he handed the note to the debtor without getting the money, and that the debtor refused to give it up. And see Fitchburg & Worcester Railroad v. Hanna, 6 Gray, 539.

Exceptions sustained.