Brewster v. Burnett

• Decision Date: 19 July 1878
• Citation: 125 Mass. 68
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: John Brewster & others v. Wellington Burnett

125 Mass. 68

John Brewster & others v. Wellington Burnett

Supreme Court of Massachusetts

July 19, 1878

Suffolk. Contract to recover back money paid, on September 28, 1867 for certain forged and counterfeit bonds of the United States. Writ dated September 24, 1873. Trial in the Superior Court before Putnam, J., who directed a verdict for the plaintiff, and reported the case for the consideration of this court. If the ruling was correct, judgment was to be entered on the verdict; otherwise, a new trial was to be ordered or such order made as the court might direct. The material facts appear in the opinion.

Judgment on the verdict.

C. R Train, for the defendant.

C. T Russell & C. T. Russell, Jr., for the plaintiffs, were not called upon.

Endicott J. Colt & Soule, JJ., absent.

OPINION

Endicott

This action is brought against the defendant, as surviving partner of the firm of Burnett, Drake & Co., by whom the bonds were sold to the plaintiffs. It appears that upon the dissolution of the firm a sufficient sum was retained by the defendant to pay the claim of the plaintiffs. Immediately after the purchase, the bonds were redeemed by the sub-treasurer of the United States, at New York, and the plaintiffs received full value for the same, upon the agreement and understanding that, if for any reason they were returned from Washington, they should be taken back by the plaintiffs and others substituted in their place or the money repaid. They were returned in a few days to the sub-treasurer as spurious and counterfeit. The plaintiffs were notified to redeem them, and gave notice at once to the firm that the bonds had been returned as spurious, and they should hold the firm liable for their full amount. An action was brought by the United States against the plaintiffs to recover the amount paid by the sub-treasurer, and suits were at the same time begun against other parties to recover money paid under like circumstances upon bonds of a similar character. The question arose in regard to defending these suits, and the defendant stated that the suit against Jay Cooke & Co. was to be a test case, and it was agreed that the plaintiffs should pay a proportional part of the expense of defending it, to be repaid to them by the firm. The firm paid their proportional part of the expenses with other parties, as called upon by the plaintiffs. But the plaintiffs made no contribution, not considering themselves liable. It is obvious that this arrangement was made for the benefit of the defendant's firm.

Before the suit against Jay Cooke & Co. was decided, and within six years from the sale of the bonds, the plaintiffs brought this action against the defendant, as surviving partner, to recover the amount paid for the bonds on the ground that they were forged and counterfeit. See Cooke v. United States, 91 U.S. 389; S.C. 12 Blatchf. C. C. 43. But the case was not tried until after the decision of Cooke v. United States, and after the plaintiffs had settled with the United States according to the obligation entered into at the time the bonds were redeemed by the sub-treasurer. The bonds were cancelled in the usual manner when redeemed, and have since remained in the possession of the United States. They were produced at the trial by the district attorney of the United States for Massachusetts, who consented to leave them in charge of the court for the purpose of the trial. The plaintiffs have not tendered them to the defendant, and whether they could have been obtained from the United States for that purpose does not distinctly appear. The sub-treasurer was asked at the trial whether he had authority to do so, and, on objection by the defendant, the...