Atlas Shoe Co. v. Bloom

• Decision Date: 06 September 1911
• Citation: 95 N.E. 952,209 Mass. 563
• Parties: ATLAS SHOE CO. v. BLOOM et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

209 Mass. 563

95 N.E. 952

ATLAS SHOE CO. v. BLOOM et al.

Supreme Judicial Court of Massachusetts, Suffolk.

September 6, 1911

COUNSEL

William M. Blatt, for appellant.

P. B Kiernan, for appellees.

OPINION

BRALEY J.

The defendant, Abraham Bloom, signed the guaranty dictated in his presence, and upon which the bill is brought, although the master finds that he did not understand its terms, because of his limited intelligence, and inability to read our language. But the plaintiff held out no inducements, and he could have refused to sign until the contents had been translated, or fully explained to him, or if deceived by the representations of his son, that the undertaking only made him responsible for a small bill of goods to be delivered in the future there is no statement that the deception was instigated or participated in by the plaintiff. In the absence of fraud practiced upon him, the defendant comes within the general rule, that mere ignorance of the contents of an instrument which a party voluntarily executes is not sufficient ground for setting it aside if ultimately the paper is found to be different from what he supposed it to be. Rice v. Dwight Mfg. Co., 2 Cush. 80; Leddy v. Barney, 139 Mass. 394, 2 N.E. 107; Freedly v. French, 154 Mass 339, 28 N.E. 272, 342.

But if he cannot avoid the effect of his signature, the guaranty in terms included not only goods to be furnished, but payment of any past indebtedness due to the plaintiff from Bernard E. Bloom, and as the guaranty formed no part of the original credit, the consideration of the original debt would be insufficient to support the promise. Cabot v. Haskins, 3 Pick. 83, 93; Tenny v. Prince, 4 Pick. 385, 16 Am. Dec. 347. The plaintiff endeavored to supply this essential element, and the master reports that the plaintiff informed the son, before the guaranty was given, that 'to make his account good it must be changed to a consigned account, and his present indebtedness guaranteed,' and 'that his account must be protected, and that unless he could get it guaranteed by a responsible person the plaintiff would have to close it,' and that the defendant signed after this last statement had been communicated to him. The master, while he does not specifically state that the defendant obligated himself to preserve the credit of his son, finds that no goods were furnished under the guaranty, and no action was brought against the son on the past account until some six months had elapsed.

If the only consideration was a continuous credit in the future, it had failed, as no goods were delivered, and the failure of consideration would discharge the guarantor. Cooper v. Joel, 1 De G., F. & J. 240; Coyle v. Fowler, 3 J. J. Marsh. (Ky.) 473.

But if the words 'that his account must be protected' can be treated as a promise by the plaintiff to forbear to press collection of the debt, followed by an actual forbearance for a reasonable time, even if no time was named, there would have been a sufficient consideration to support the guaranty notwithstanding the master also reports, that no money was paid to the defendant, nor any promise made to him of any money consideration. Lent v. Padelford, 10 Mass. 230, 6 Am. Dec. 119; Walker v. Sherman, 11 Metc. 170; Johnson v. Wilmarth, 13 Metc. 416. The 'protection' of the account, however, was the giving of security for its payment, and there was no express statement, or even an implied understanding upon the facts stated in the report, that suit would be brought if a guarantor was not promptly furnished. While the contract, therefore, was not binding as an undertaking to pay the accrued account, the guaranty furthermore named no amount, and the burden of proof as the master correctly held rested on the plaintiff to offer competent evidence in support of the allegations of the second paragraph of the bill. Tenny v. Prince, 4 Pick. 385, 16 Am. Dec. 347. The master found that the plaintiff failed to establish that Bernard E. Bloom was indebted to it at the date of the guaranty, and its exceptions to the report so far as argued relate to the exclusion of evidence, which it contends if admitted...