American MaLting Co. v. Souther Brewing Co.

• Decision Date: 26 February 1907
• Citation: 80 N.E. 526,194 Mass. 89
• Parties: AMERICAN MALTING CO. v. SOUTHER BREWING CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

194 Mass. 89

80 N.E. 526

AMERICAN MALTING CO. v. SOUTHER BREWING CO.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1907

COUNSEL

G. W. Anderson and C.J. Rueter, for plaintiff.

Elder & Whitman and Frank E. Bradbury, for defendant.

OPINION

BRALEY J.

The case having been tried to the court the findings of fact are not open to review, but must be treated as conclusive if there is any evidence to support them. White Sewing Machine Co. v. Phenix Nerve Beverage Co., 188 Mass. 407 409, 74 N.E. 600, and cases cited. Unless certain promissory notes made by the partnership to the order of the plaintiff are to be credited as a partial payment the entire amount for which suit has been brought is due. It has been settled law in this jurisdiction for more than a century, that where a debtor delivers to his creditor either his own or the negotiable promissory note of a third party for the whole, or a part of the indebtedness, a presumption arises that it was given and received in satisfaction of the debt, although this presumption may be controlled by evidence, that by acceptance the creditor did not intend to extinguish the original claim. Thacher v. Dinsmore, 5 Mass. 299, 302, 4 Am. Dec 61; Wiseman v. Lyman, 7 Mass. 286; Curtis v Hubbard, 9 Metc. 322; Brigham v. Lally, 130 Mass. 485; Dodge v. Emerson, 131 Mass. 467; Green v. Russell, 132 Mass. 536; Ely v. James, 123 Mass. 36, 41; Davis v. Parsons, 157 Mass. 584, 587, 32 N.E. 1117; Brewer Lumber Co. v. Boston & Albany R. R. Co., 179 Mass. 228, 234, 60 N.E. 548, 54 L. R. A. 435, 88 Am. St. Rep. 375; Jeffrey v. Rosenfeld, 179 Mass. 506, 509, 61 N.E. 49; Paddock & Fowler Co. v. Simmons, 186 Mass. 152, 153, 71 N.E. 298. But as this rule of evidence was not the law of the plaintiff's place of business where the notes were accepted, it is not applicable unless the contract was to be performed here. Carnegie v. Morrison, 2 Metc. 381, 387; Tarbox v. Childs, 165 Mass. 408, 411, 43 N.E. 124, and cases cited; Andrews v. Pond, 13 Pet. 65, 10 L.Ed. 61. The auditor, upon whose findings the ruling as to the place of performance rests, not only reports that the malt was to be delivered to the carrier at Boston where the title passed and consequently the defendant's promise to pay arose, but the notes were made, and were payable here, though sent by mail to the plaintiff. When considered separately the place of the making and performance of the contract of sale was the same, while the notes became completed contracts only upon their acceptance in another state. But this fact is not decisive. The debt due for the malt was payable in this commonwealth where the performance of this contract began, and the notes given which it is claimed were to be applied in payment were also made payable here, and not elsewhere. Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 9 S.Ct. 469, 32 L.Ed. 788. When accepted, the acceptance having been according to their tenor, it was correctly ruled that the contract was to be performed at the place selected by the parties. Carnegie v. Morrison, ubi supra; Penobscot & Kennebec R. R. Co. v. Bartlett, 12 Gray, 244, 248, 71 Am. Dec. 753; Shoe & Leather Nat. Bank v. Wood, 142 Mass. 563, 567, 8 N.E. 753; Tarbox v. Childs, ubi supra; Andrews v. Pond, ubi supra; De Wolf v. Johnson, 10 Wheat. 367, 383, 6 L.Ed. 343; Chatenay v. Brizilian Submarine Tel. Co. [1891] 1 Q. B. 79, 82; Hamlyn v. Talisker Distillery [1894] A. C. 202. See Nashua Sav. Bank v. Sayles, 184 Mass. 520, 522, 69 N.E. 309, 100 Am. St. Rep. 573.

But while under the rulings this presumption must be included as forming a portion of the evidence upon which the finding of payment rests, the plaintiff contends that the entire testimony is insufficient to sustain the finding that there was a written agreement to receive the notes in payment, or that by their acceptance it intended to extinguish a part of the original debt. The inception of this agreement is contained in two letters, which are to be construed with later letters to ascertain if nay or all of the notes were given and accepted in partial liquidation, or as security. Previously to the organization of the corporation the plaintiff had dealt with the partnership to whose business the defendant had succeeded, and from the auditor's report of their commercial relations, and the letters which passed between them, it is evident that the plaintiff was desirous of retaining the corporation as a customer, and when the arrangement was proposed regarded the financial condition of either as unexceptionable. In less than a year after the contract for malt was entered into the indebtedness on account amounted to a large sum which had become overdue. The plaintiff insisted upon payment, and on June 27, 1899, while acknowledging and regretting the delay, the defendant offered by letter the notes of the partnership 'to settle everything due at the present moment if acceptable. * * *' To this letter on June 29, 1899, the plaintiff replied 'that we would be pleased to receive the notes from you with interest for the overdue amounts, * * * and if you wish would be pleased to accept your notes for everything shipped so far having the same run on stipulated time of contract.' The subsequent correspondence discloses a...