Alexander v. Mcpeck

• Decision Date: 08 September 1905
• Citation: Alexander v. Mcpeck, 189 Mass. 34, 75 N.E. 88 (Mass. 1905)
• Parties: ALEXANDER v. McPECK et al.
• Court: Supreme Judicial Court of Massachusetts

189 Mass. 34

75 N.E. 88

ALEXANDER v. McPECK et al.

Supreme Judicial Court of Massachusetts, Suffolk.

September 8, 1905

COUNSEL

J. Noble, Jr., for complainant.

Whipple Sears & Ogden, for defendantHammond Braman.

Carret Chase & Hay, for defendantsexecutors and trustees under will of G. T. W. Braman.

OPINION

HAMMOND J.

At the hearing on the merits the defense set up by Hammond Braman that the rights claimed by the plaintiff had been adjudicated against him in the receivership proceedings was abandoned and there was no evidence that the instrument of February 5, 1902, was procured by fraud or misrepresentation.The case has two main branches; the first relating to the obligation assumed by Hammond Braman by the agreement of February 5, 1902, and the second relating to the question whether his interest in the trust funds under his father's will can be reached and applied so far as necessary to the payment of the judgment.

1.As to the agreement: Braman contends that under it he did not assume the liabilities of the old firm and agree to pay the old debts and obligations, or that, in any event, his liability is limited to reimbursing the plaintiff for such sums as he actually has paid out.While the words 'release, remise, and forever discharge' were not the most appropriate to be used under the circumstances then existing, still they are to be given a meaning which will effectuate the plain intention of the parties, and so they must be construed to be an agreement to assume and discharge all the debts, agreements, and liabilities of the old firm.In no other way could Braman release and discharge Alexander from the obligations contracted by the old firm.Dorsey v. Dashiell,1 Md. 198, 203, 206;Griffith v. Buck,13 Md. 102, 114.So construed, the instrument is something more than a mere contract of indemnity.A contract to assume and pay a liability is a contract to pay it forthwith, if it is due when the contract to assume is made, or, if not then due, when it shall become due; and it gives to the party in whose favor it is made a right of action as soon as the debt has matured, whether or not he has paid it himself.Furnas v. Durgin,119 Mass. 500, 20 Am. Rep. 341;Locke v. Homer,131 Mass. 93, 41 Am. Rep. 199.Under the doctrine of these cases, the plaintiff's right against Braman in respect of the Humphrey demand and the judgment rendered on it was complete, at the latest, when the judgment was entered, notwithstanding the fact that the plaintiff made no payment upon it.Nichols v. Prince, 8 Allen, 404, cited by the defendant, does not decide that the suit could not have been maintained before payment, and the question whether the agreement to 'discharge' the retiring partner 'from all liabilities' should be construed as an agreement to assume and pay them was not before the court.

It is further contended in defense that the instrument does not extend to such a claim as was presented in the Humphrey suit.Assuming that at common law there could have been no recovery upon such a claim, still the right to recover in such a case is given by statute.St. 1890, p. 479, c. 437;St. 1901, p. 391, c. 459;Rev. Laws, c. 99, § 4.The right so given imposed a corresponding obligation upon the defendants in the Humphrey suit to pay, and that obligation was a debt or liability contracted by the old firm before the date of the instrument in question.The assumption of the liability by Braman was not in contravention, but in furtherance, of the purposes of the statute.Public policy does not require the refusal to enforce an agreement to assume and pay such a liability.It can be released (Wall v. Metropolitan Stock Exchange,168 Mass. 282, 46 N.E. 1062), and it can be assumed.

It is still further contended by the defense that this action cannot be maintained because Braman was not vouched in to defend the Humphrey suit, and final judgment therein was entered upon default.Braman, however, agreed to assume and pay that liability.At the time he signed the agreement he was informed of the pendency of the suit, and he was again informed of it after the appeal to the superior court and before the withdrawal of the appearance of the attorney who had been employed by the old firm for the defense.If he desired to have the suit defended, it was his duty to take the proper measures to that end.There is no evidence of collusion in suffering judgment to be entered.He cannot now complain that Alexander, whom he had agreed to discharge from this liability, did not continue to defend the suit.SeeTracy v. Maloney,105 Mass. 90;Cutter v. Evans,115 Mass. 27;Tapley v. Goodsell,122 Mass. 176;Curtiss v. Curtiss,182 Mass. 104, 66 N.E. 635.

The contentions made in the original answer of Braman that the instrument of February 15, 1902, was void as being part of an inducement held out to him to enter upon an illegal business, and that the liability of the old firm to Humphrey had been released by an instrument of December 26, 1901, are not renewed in the substituted answer, and we treat them as waived.Upon this branch of the case the result is that the decree that Hammond Braman shall pay to the plaintiff the amount of the Humphrey judgment, with interest, together with the costs of this suit, should be affirmed.

2.As to whether the interest of Hammond Braman in the trust funds held under the will of Grenville T. W. Braman can be reached to enforce this payment: For convenience in this branch of the casewe shall call Hammond Braman only by his first name, to distinguish him from the other members of the family to which he belonged.The executors of the will allege that they have transferred to the trustees all the funds in which Hammond had any interest.We do not understand that the plaintiff desires to controvert this.The bill, therefore, should be dismissed against Susie A. Braman, who is summoned simply as executrix, and as against Elmer P. Howe and Grenville D. Braman, who are summoned as executors and trustees, so far as they are executors.

The will is of considerable length, and is drawn with some care.After giving certain personal property to his wife, Susie A. Braman, the testator gives all the residue in trust.Of the trusts in which Hammond is interested the first is contained in the second article in clause 'a,' and is as follows: 'If my said wife shall survive me, to set apart and invest in trust as a fund property to be selected and valued by my said trustees, which shall amount to one-third of the estate and property given to said trustees, or money to that amount, and to pay the net income thereof as often as once in six months to my said wife during her life, and at the death of my said wife to convert the principal of the said third of such estate and property into money and to divide the same in three equal parts * * * [and after directing the payment of two such portions to his son Grenville and his daughter Caroline or their appointees or legal representatives] * * * to pay over the remaining part thereof to my son Hammond Braman, if he shall survive my said wife, or if he shall die before her, to his issue living at the time of her death by right of representation, and in default of his issue then living, to his legal representatives.'With reference to this clause it appears that the widow is still living.The second trust is in clause 'd' of the same article, and is as follows: 'If my said son Hammond shall survive me, to set apart and invest as another trust fund, the sum of fifty thousand dollars, in money or in property selected and valued at that amount by my said trustees, and to pay over as often as once in six months the net income of this trust fund to my said son Hammond during his life, upon his sole receipt and not in compliance with any assignment or anticipation, and at his death to pay over, transfer and convey the principal of this trust fund to his issue living at the time of his death, by right of representation, and in default of his issue then living, to his legal representatives.'The third is in clause 'e' of the same article, and is as follows: 'As soon as practicable after my decease, to convert into money all the residue of my estate and property not hereinbefore disposed of, and to divide the same into three equal parts * * * [and after directing the payment of two such parts to his son Grenville and his daughter Caroline, or their issue or legal representatives] * * * to pay over the remaining part to my said son Hammond if he shall survive me, or if he shall die before me, to his issue living at the time of my death by right of representation, and in default of his issue then living, to his legal representatives.'

Rev Laws, c. 159, § 3, cl. 7, provides that a creditor can reach equity 'any property, right, title or interest, legal or equitable, of a debtor, * * * which cannot be reached to be...