Bragg v. Danielson

• Decision Date: 27 February 1886
• Citation: 4 N.E. 622,141 Mass. 195
• Parties: BRAGG v. DANIELSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

141 Mass. 195

4 N.E. 622

BRAGG v. DANIELSON.

Supreme Judicial Court of Massachusetts.

February 27, 1886

Filed February 27, 1886.

HEADNOTES

COUNSEL

G.A. Bruce and Geo W. McConnell, for plaintiff.

S.J Thomas, for defendant.

The facts appear in the opinion.

OPINION

HOLMES, J.

This is an action on a promissory note, and defendant's liability is not disputed unless the following facts disclose a defense. The note was made for the accommodation of one Lewis, who, however, was not a party to it. When it fell due the plaintiff agreed with the defendant that, if the defendant would pay him another note for $225, made by the defendant, held by the plaintiff, and then due, "the plaintiff would undertake to sue and would sue Lewis, and collect the note now sued upon from him, and release defendant from liability thereon, and deliver said note to him." The defendant paid the $225 note, and, relying upon the plaintiff's agreement, omitted to take any steps to secure payment of the note in suit by Lewis, as he would have done otherwise.

It is not clear that the plaintiff's promise meant anything more than that the plaintiff would do his best to collect from Lewis, and would release the defendant, and hand him the note, if successful, and Lewis was not a party to the contract, so that the plaintiff could not have done more than have possession. There was no offer to prove that the plaintiff had not done his best during the 10 days that Lewis remained alive. But if the words used imported a present discharge, they were inoperative. There was neither a release nor an accord and satisfaction. In England it has been said that the law-merchant has introduced an exception, in the case of bill and note, to the rule that, after breach, a simple contract can only be discharged by deed, or upon sufficient consideration. Foster v. Dawber, 6 Exch. 839-855. See Dingwall v. Dunster, 1 Doug. 247; Farquhar v. Southey, Moody & M. 14-16. But no such exception is recognized in this commonwealth when the note is not surrendered. Smith v. Bartholomew, 1 Metc. 276; Shaw v. Pratt, 22 Pick. 305. There was no deed, and payment of another debt then due and payable could no more operate as a satisfaction of the debt in suit than payment of part of the later debt. Smith v. Bartholomew, supra; Dixon v. Adams, Cro. Eliz. 538.

Then it is said that the defendant relied on the plaintiff's promise. But the very meaning of the requirements of a consideration for a promise or other agreement is that, if that element is wanting, the party...