Allen v. Brown

• Citation: 124 Mass. 77
• Parties: Asa M. Allen v. David P. Brown. Same v. George M. Buttrick
• Decision Date: 27 February 1878
• Court: United States State Supreme Judicial Court of Massachusetts

124 Mass. 77

Asa M. Allen v. David P. Brown.

Same v. George M. Buttrick

Supreme Court of Massachusetts

February 27, 1878

Argued October 4, 1877

Worcester. Two actions of contract against the defendants as makers of a promissory note for $ 1000, dated February 2 1874, payable on demand to Lyman Drury or order, purporting to be signed on its face by Lucius W. Pond, and on its back by the defendants, and indorsed by Drury to the plaintiff. Writs dated May 6, 1876.

At the trial in the Superior Court, before Aldrich, J., the plaintiff introduced evidence that the note was signed by Pond and indorsed by the defendants, and in that condition was delivered to Drury by Pond for a debt due from Pond to Drury; and that thereafter Drury indorsed the note to the plaintiff.

The defendants contended and offered to prove by parol that they put their names on the note with the intention, both of themselves and the payee of the note, that they should assume the responsibility of indorsers only, and not as original promisors, and that the payee consented to accept and did accept the note, in pursuance of an agreement with the defendants that he would hold and treat them as indorsers only, and not as original promisors.

The defendants further contended, and offered to prove by parol that they put their names on the note as sureties for the maker, without consideration, and that the payee, knowing this relation of suretyship, accepted the same; and that the payee and the plaintiff, with knowledge of the suretyship gave to the maker, without the knowledge and consent of the defendants, a long and unreasonable extension of time in which to pay the note, and by such gross negligence and laches in other respects so lessened, embarrassed and destroyed the defendants' rights and remedies against the maker, as to discharge them from all liability on the note.

The plaintiff objected to the admission of this evidence, and the judge excluded it, ruled that the defendants were liable as original promisors, and directed the jury to return a verdict for the plaintiff. The defendants alleged exceptions.

Exceptions overruled.

B. W. Potter, for the defendants.

H. L. Parker, for the plaintiff.

Soule J. Endicott & Lord, JJ., absent.

OPINION

Soule, J.

The defendants put their names on the back of the note before it was delivered to the payee and became a binding contract. They must, therefore, be considered as original promisors, and parol evidence was not admissible to show that this was not their real contract. Union Bank v. Willis, 8 Met. 504. Brown v. Butler, 99 Mass. 179. Way v. Butterworth, 108 Mass. 509.

The evidence offered of an extension of time...