Franklin Sav. Institution v. Reed

• Decision Date: 17 September 1878
• Parties: Franklin Savings Institution v. John Reed
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

125 Mass. 365

Franklin Savings Institution v. John Reed

Supreme Court of Massachusetts

September 17, 1878

Franklin. Contract. Writ dated May 26, 1877. The declaration alleged that the defendant and Benjamin W. Reed made the following promissory note; that Robbins, the payee named therein indorsed the same to the plaintiff; and that the defendant owed the plaintiff the balance of said note and interest thereon:

"$ 2600. December 5th, 1870. For value received we jointly and severally promise to pay Edward A. Robbins or order twenty-six hundred dollars on demand, with interest annually at 7 per cent., interest to commence April 1st, 1871.

"Benjamin W. Reed.

"John Reed, Surety.

"It is understood and agreed that the said B. W. Reed is not to be compelled to pay said note before April 1st, 1881."

The defendant filed the following answer: "And now comes the defendant in the above entitled action, and says the action is prematurely brought. And he further says that the payee of said note, for a good and valuable consideration, and at the time said note was given, agreed that said Benjamin W. Reed who was the principal named in said note, should not be compelled to pay the note declared on before April 1st, 1881. And therefore the defendant, who was a surety only in said note, was not at the time the action was commenced, and is not now, liable to the action."

At the trial in the Superior Court, before Pitman, J., it appeared that the memorandum at the bottom of the note was made before the delivery of the note to the original payee. The plaintiff contended and asked the judge to rule that the defendant, by his answer, had waived any defence he may have had that the action was prematurely brought; and that the action could be maintained. But the judge ruled that the defendant had not waived such defence, and that the action was prematurely brought; and directed the jury to return a verdict for the defendant. The plaintiff alleged exceptions.

Exceptions overruled.

A. De Wolf, for the plaintiff. The defendant is not included in the terms of the agreement not to sue until April 1, 1881. The note, being joint and several, contains three contracts namely, a joint contract by the signers, and a several contract of each of them. King v. Hoare, 13 M. &amp W. 494, 505. The fact that the defendant is designated as a surety does not change the legal effect of the contract, and for the purpose of the case he is to be treated as a principal. Harris v. Brooks, 21 Pick. 195 An agreement not to sue one joint promisor does not discharge the other. Price v. Barker, 4 El. & Bl. 760. Harrison v. Close, 2 Johns. 448. Draper v. Weld, 13 Gray 580. An...