Ashcroft v. Simmons

• Decision Date: 15 May 1890
• Parties: ASHCROFT v. SIMMONS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

151 Mass. 497

24 N.E. 398

ASHCROFT v. SIMMONS.

Supreme Judicial Court of Massachusetts, Suffolk.

May 15, 1890

Exceptions from superior court, Suffolk county JAMES M. BARKER, Judge.

May 15 1890

HEADNOTES

COUNSEL

N.D.A Clarke, for plaintiff.

Baker & Curry, for defendant.

OPINION

HOLMES, J.

This is an action of replevin by a mortgagee of the chattels in question against an officer who made a valid attachment of them. Within a reasonable time the plaintiff gave a written demand and statement to the defendant, and the question is whether it was "a just and true account of the debt or demand for which the property is liable to him," within Pub.St. c. 161, § 75. At the trial the presiding judge ruled that it was insufficient, and the plaintiff excepted.

The mortgage was given by one Bird to secure his note for $3,500, and also secure Bird's performance of an agreement to allow the plaintiff to enter into partnership with him, and to have an equal interest in the partnership business and property, if the plaintiff desired, upon the plaintiff's conveying to the partnership all his interest under the mortgage. The consideration of the mortgage was $1,000 cash, and five notes, for $500 each, signed by the plaintiff, none of which were due at the time of the plaintiff's demand. Three had been sold, and two were still held by Bird. By the agreement just mentioned, if the plaintiff became a partner, these notes were to be paid out of the partnership profits, if there should be any. The plaintiff never became a partner.

The notice was as follows:

"Boston, Sept. 1, 1888.

"To S. Simmons, Constable--Sir: I hereby demand of you the sum of thirty-five hundred dollars, which is the amount now due me on a mortgage given to me by Asa F. Bird, dated July 12, 1888, and recorded with the mortgages of personal property for the city of Boston, libro 534, folio 268, and with the mortgages of personal property for the City of Lynn, libro 33, folio 270, which mortgage covers the personal property in buildings numbered 99 and 101 on Bristol street, in Boston, Massachusetts, now held by you on attachment, by divers writs, as the property of said Asa F. Bird.

"FRANK A. ASHCROFT."

Giving this notice was an election by the plaintiff to have the mortgage note paid out of the mortgaged property, and therefore an election not to enter into partnership with Bird. The agreement secured by the mortgage thus ceased to be any part of the demand for which the property was liable to the plaintiff, and by the letter of the statute there was no need to mention it in stating the account. It will be noticed that the right thus to elect, arbitrarily and at any time, was reserved in the agreement itself, so that the case is not like one where a creditor should undertake of his own motion, and without right, to waive an absolute obligation, such as a part of his debt, in order to disguise the amount, and to prevent investigation by the attaching creditor.

Again, there was no need to refer to the fact that the consideration of the mortgage note consisted in part of notes given by the plaintiff. The statute does not require the consideration to be stated as such, and the nature of it in this case did not affect the amount for which the property was liable at the time of the demand, if the creditor had seen fit to pay the whole amount of the mortgage note, although the plaintiff's notes were still outstanding unpaid, and not yet due. Bicknell v. Cleverly, 125 Mass. 164; Haskell v. Gordon, 3 Metc. 268, 272.

The only question that remains is whether the statement that $3,500, the principal only, was the amount then due on the mortgage, coupled with the failure to state the interest, if, as we assume, there was some interest payable, prevented the account from being a true account. We are of opinion that it did not have that effect.

Without meaning to disturb anything essential to the decision in Wilson v. Crooker, 145 Mass. 571, 14 N.E. 798, it may be said with safety that...