Scott v. McKinney

98 Mass. 344 | Mass. | 1867

Chapman, J.

Under the rulings of the presiding judge, the jury must have found that the plaintiffs were joint purchasers of the cotton with Flynn, and that, if their interest depended upon their payment of half the purchase money, they either paid it according to their agreement, or, if they did not pay it seasonably, Flynn waived his rights in that respect; that they were joint owners at the time of the sale, and that it was sold to the defendants on joint account; that the defendant was notified of the plaintiffs’ interest in the property, and by consent of Flynn agreed to pay one half of the price to the plaintiffs, and the other half to Flynn.

Upon these facts the plaintiffs were entitled to recover. The evidence which was admitted de bene was competent. If Flynn made the purchase in his own name, still the plaintiffs might prove that it was on joint account; and, if he sold it in his own name, they might show that he acted for them as well as for himself. The notice which they gave to the defendant of their interest was properly received in evidence; and it was proper that the court should look beyond the forms of the transaction to its substance. The rulings were all correct.

The release of the plaintiffs and Flynn respectively to all claim for more than one half the price was a sufficient consideration for the agreement of the defendant to sever the payment, and the contract of severance was valid. Hall v. Leigh, 8 Cranch, 50

Exceptions overruled.