Bishop v. Eaton
| Citation | 161 Mass. 496,37 N.E. 665 |
| Parties | BISHOP v. EATON. |
| Decision Date | 19 June 1894 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Evidence was offered tending to show that in 1886 and for some time prior to 1886, the plaintiff and Harry H Eaton, a brother of the defendant, lived in the county of De Kalb, Ill., for the most of said time in Sycamore, and were together socially, and, to some extent, were engaged in business and in political matters. Some time near the last ofDecember, 1886, defendant wrote to plaintiff "If Henry needs more money, let him have it, or assist him to get it, and I will see that it is paid." Thereupon said Harry, needing more money, on January 7, 1887 made a promissory note for $200 on one year's time, with interest at the rate of 8 per centum per annum. To assist said Harry to get the money, plaintiff signed this note as surety. Without the suretyship of plaintiff, the note would not have been accepted by the payee. Plaintiff signed the note relying on said letter, and looked to defendant, solely, for reimbursement, if called on to pay the note. Shortly after signing the note, plaintiff deposited in the mail at Sycamore a letter, properly addressed (and stamped) to defendant at the latter's home in Nova Scotia, in which letter plaintiff set forth the giving of the note and the particulars thereof. Defendant testified that he never received said letter. When said note became due, the time of payment was extended for a year, whether with or without the knowledge or consent of defendant was in dispute. In August, 1889, there was an interview between the parties about the note, in which plaintiff asked defendant to take up the note still outstanding, and pay it. Defendant replied, in substance: In 1889, 1890, and 1891 there was much correspondence between the parties about the matter, in which plaintiff insisted that said note was an outstanding obligation defendant should take care of. Defendant substantially denied his liability to plaintiff, and insisted that plaintiff signed said note as surety as an accommodation to said Harry by reason of said social, business, and political relations, and not because of any promise of defendant to plaintiff. Both parties testified that in 1885 Harry H. Eaton had made a note for $100 to one Stark of said Sycamore, which plaintiff had signed as surety, relying on a written promise of defendant to see him paid. And defendant testified and claimed that this earlier note of 1885 was the note to which he (defendant) referred, and the only note signed by plaintiff as surety of which he (defendant) was aware at the said interview of August, 1889. On October 1, 1891, the plaintiff paid $242.50, and took up said note. Plaintiff testified that, after making said payment, he made no effort to collect the amount thereof from said Harry H. Eaton, and defendant testified that he had no notice of said payment till notified thereof by plaintiff's counsel on or about December 22, 1891. The evidence on this point was conflicting.
Defendant in writing requested the following rulings, viz.: First. The words alleged to have been written to the plaintiff by the defendant, and set up by the plaintiff as the foundation of this action, constituted in law no more than an offer or overture to guaranty. Second. The defendant did not become bound by a contract of guaranty, if at all, unless and until within a reasonable time after said offer was accepted and acted upon; it appears from a preponderance of the evidence that defendant had notice of such acceptance, and the giving of credit thereon. Third. The mere depositing in the mail by the party to whom an offer of guaranty has been made by mail of a letter accepting such offer, properly stamped and addressed to the party making such offer, and within a reasonable time after said acceptance, does not in law constitute such notice to the latter as thereupon to bind him to a contract. Fourth. The defendant did not become bound by the contract, if at all, unless he actually received such letter of acceptance within a reasonable time. Fifth. A delay, for two years and a half after accepting and acting upon such an offer, to give notice thereof to the party making the said offer, is an unreasonable delay. Sixth. If within a reasonable time after the plaintiff's alleged acceptance of and action upon the alleged offer, the defendant had notice thereof, then the obligation by which the defendant became bound was not an original promise, but an undertaking collateral to the debt of the defendant's brother Harry H. Eaton, was within the statute of frauds, and was, in substance, a promise or obligation that if plaintiff, as surety upon the note described in such notice, was obliged to pay said note at its maturity through the maker's (Harry H. Eaton's) default, and if, further, the plaintiff, after due notice to the defendant of said default, had used due diligence in attempting to collect the sum so paid from the original maker, and gave due notice to defendant of his failure so to collect, then the defendant would repay the plaintiff what the latter had so paid. Seventh. If, for a year and a half after the maturity of said note and the default of the maker, the defendant had no notice of said default, then the defendant was discharged from his alleged contract, unless subsequently he waived his rights arising from said laches. Eighth. The extension of time, at the maturity of said note, for the payment thereof, and for a definite time, without the knowledge or consent of the defendant, discharged the defendant from his alleged contract, unless subsequently, with a full knowledge of the facts, he assented to and ratified the same. Ninth. The conversation between the plaintiff and defendant at Kentville in August, 1889, and the defendant's subsequent statements in writing, are too equivocal under the circumstances to constitute any ratification of an alleged prior contract, or a waiver of defendant's rights arising from plaintiff's laches. Tenth. After paying said note, the plaintiff did not use due diligence in trying first to collect from Harry H. Eaton the amount of said payment, and hence the plaintiff cannot recover in this action. Eleventh. After paying said note, the plaintiff did not within a reasonable time notify defendant of such payment and default of said Harry H. Eaton, and hence plaintiff cannot recover in this action. The court found upon all the evidence on the case that in 1886, and for some time prior thereto, the plaintiff and Henry H. Eaton, a brother of the defendant, lived in Sycamore, De Kalb county, state of Illinois, and were together socially, and, to some extent, engaged in business and political matters. Some time near the last of December, 1886, the defendant wrote the plaintiff, "If Henry needs more money let him have it, or assist him to get it, and I will see that it is paid." Thereupon the said Henry, needing more money, on January 7, 1887, made a promissory note for $200 on one year's time, with interest at the rate of 8 per cent. per annum, to assist said Henry to get the money. The plaintiff signed this note as surety. Without the suretyship of the plaintiff, the note would not have been accepted by the payee thereof. Plaintiff signed the note relying upon said letter, and looked to defendant, solely, for reimbursement, if called upon to pay the note. After signing the note, plaintiff wrote defendant that the note had been given, stating the amount. When the note...
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