Abbott v. Fisher

• Decision Date: 03 May 1878
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: John S. Abbott v. Alfred G. Fisher & another

124 Mass. 414

John S. Abbott v. Alfred G. Fisher & another

Supreme Court of Massachusetts

May 3, 1878

[Syllabus Material]

Suffolk. Contract against Alfred G. Fisher and Sarah L Allwright, on a promissory note for $ 300, dated August 14 1876, signed by the defendant Fisher, payable to his own order and indorsed by him and the other defendant. Answer, want of consideration. Trial in the Superior Court, before Rockwell, J., who ordered a verdict for the defendants, and reported the case, for the consideration of this court, in substance as follows:

On May 12, 1875, the plaintiff and Fisher were duly chosen assignees of the estate of Horace L. Duncklee, who had previously been adjudged a bankrupt by the District Court of the United States for the District of Massachusetts; on the same day the choice was approved and confirmed, and they accepted that trust. The plaintiff offered to prove the following facts:

Prior to July, 1876, about $ 3000 had been received by Fisher from the assets of said estate, but, though he had frequently assured the plaintiff that the money should be deposited in their joint names, as assignees, no part of it had been deposited; and on July 7, 1876, the plaintiff presented to the judge of the District Court the following petition, signed by him: "1, John S. Abbott, respectfully represent that I am one of the assignees of said bankrupt's estate, and that A. G. Fisher, Esq., whose office is at 82 Devonshire Street, Boston, is the other assignee. All of the money obtained from said estate, amounting to $ 3000, or thereabouts, has been received by said Fisher, who promised many months since that it should be deposited, in our joint names, in one of the banks designated by the court. I have recently been informed that the money has not been so deposited, and said Fisher declines to state what disposition has been made of it. In the interest of the creditors of said estate I respectfully request that said Fisher be required to give bond with sureties for the performance of his duties as assignee."

This petition was referred to a register in bankruptcy acting in the cause, to hear the parties and make such order as he deemed proper, and to see that such order was carried out.

On July 11, 1876, the register appointed July 13, 1876, at noon, as the time for hearing on the petition, and issued an order of notice to Fisher, which was duly served. At the request of Fisher, postponements were had, and, after sundry interviews by the plaintiff with the defendant Allwright's attorney, on September 1, 1876, the plaintiff received from such attorney seven promissory notes amounting in all to $ 2400, and delivered to him for Allwright a paper writing, signed by the plaintiff, which, after acknowledging the receipt of the notes, proceeded as follows:

"These notes were received by me under the following circumstances and conditions: Said Fisher is one of the assignees in bankruptcy of Horace L. Duncklee, and has not given bonds as assignee. I am also one of the assignees, and, in accordance with my application, said Fisher has been ordered by Register Thorndike to furnish a bond; but he has not found it convenient to furnish the required bond, but has made said notes for the balance of his account as rendered to me, and Miss Allwright has indorsed same. Now in consideration of the indorsement and delivery to me by Miss Allwright of said notes, I agree as follows: 1. To allow, so far as I am concerned, acting in behalf of the creditors of said Duncklee, said Fisher four months' time from this date within which to furnish the required bond; and whenever such bond shall have been furnished, to surrender to Miss Allwright, on request by her, or by any one presenting a written request from her, such of said notes as shall not have been previously paid; but if any of them shall then be in suit, I am to be first paid or indemnified and protected against all costs and expenses which shall have accrued and which may thereafterwards accrue in such suits. 2. If any movement shall be made without the collusion of...