159 Mass. 51 | Mass. | 1893
The plaintiff’s oral evidence tended to show that he took the note by purchase, and the defendants’ oral evidence tended to show that he took it as collateral. So far as the oral evidence was concerned, it was clearly a question for the jury. The ruling, therefore, must have been on the ground that the written agreement showed conclusively that the plaintiff took the note by purchase. We are unable to see that it has this conclusive effect. The plaintiff paid to the defendants $675, and took from them Shepard’s note for $1,750. Upon this note Shepard was primarily responsible, and the defendants were indorsers and responsible secondarily. It was for the interest of the defendants that the money should be collected from Shepard. If the note should be paid by Shepard, the plaintiff would have in his hands $1,075 more than his payment to the defendants. Under this state of things the written agreement was executed. It may be assumed to have been so nearly contemporaneous with the transfer of the note as to be part of the transaction. Now we have to consider whether this agreement necessarily implies that the plaintiff took the note by purchase, so as to be absolute owner, rather than as collateral. The words near the beginning of the agreement, “ when the note is paid, I agree to convey to Alfred A. Marcus & Son,” etc., may naturally refer to a payment by Shepard, the maker, and do not necessarily imply a duty on the part of the indorsers to pay it in full. So the words at the
The discharge of Shepard under the composition proceedings, though assented to by the plaintiff, does not cut off the plaintiff’s claim against the defendants as indorsers. Sts. 1884, c. 236, § 9; 1885, c. 353. Pub. Sts. c. 157, § 85.
Exceptions sustained.