Colt v. Learned

• Citation: 133 Mass. 409
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 02 October 1882
• Parties: Henry Colt & others, executors, v. Edward Learned & another

133 Mass. 409

Henry Colt & others, executors, v. Edward Learned & another

Supreme Court of Massachusetts

October 2, 1882

Berkshire. Contract in two counts, under the Gen. Sts. c 129, § 4, by the executors of William Pollock against Edward Learned and Theodore Pomeroy. The first count of the declaration was as follows:

"And the plaintiffs say that they are the executors of the last will of William Pollock, late of Pittsfield, in said county deceased, and that in his lifetime the said Pollock loaned to the Niwat Mining Company, upon the twenty-fifth day of July A. D. 1865, fifteen thousand dollars, to be repaid to said Pollock in three months from that date, and in consideration that said Pollock would make said loan, the said Learned and said Pomeroy and Pollock, at the time said loan was made, severally executed a contract in writing, a copy whereof is hereto annexed. And the plaintiffs say that upon the sixteenth day of December, A. D. 1865, the sum of five hundred and twenty-five dollars was paid upon said loan, and that the balance of said loan remains unpaid and is still due, with interest, notwithstanding the time for the payment of said loan has long since elapsed.

"And the plaintiffs say that, by virtue of said written contract, the said Learned assumed and guaranteed to said Pollock the payment of one third part of said loan, with interest, if not paid by the said Niwat Mining Company at the time when payable as aforesaid; and the plaintiffs say that no part of said loan has been paid by said company, or other person, except as aforesaid, and that the said Learned owes the plaintiffs in their said capacity one third part of the aforesaid balance, with interest."

The second count declared against Pomeroy in the same terms as the first count.

The copy annexed was as follows: "Pittsfield, July 25th, 1865. William Pollock having this day loaned the Niwat Mining Company fifteen thousand dollars, payable three months from this date, we, for value received, hereby jointly and severally guarantee the repayment of said loan and interest at the time the same shall be payable as aforesaid. Edward Learned, Theo. Pomeroy, Wm. Pollock."

The defendant Pomeroy died on September 26, 1881, and his death was suggested on the record; and his executors, who were duly appointed on November 9, 1881, were summoned to appear at the February term 1882 of the Superior Court, to answer to and defend the action as against Pomeroy. They appeared specially at said term, and filed an answer setting up "that they ought not to be compelled to appear and take upon themselves the defence of said suit, because the statute in such cases made and provided requires that, upon the death of said Theodore Pomeroy, said action shall proceed against the surviving defendant, and does not provide that, in case one of the defendants survives, the action may be prosecuted against the executors or administrators of the deceased defendant, and the said executors aver that said defendant Edward Learned still survives, and that the court has no power, jurisdiction or authority to summon in said executors to defend said action."

At the hearing upon this answer, Blodgett, J. ruled in accordance with the claims therein set up, and ordered the action dismissed as against the executors of Pomeroy; and the plaintiffs alleged exceptions.

Exceptions sustained.

M. Wilcox, for the plaintiffs.

T. P. Pingree & J. M. Barker, for the defendants.

Morton, C. J. Endicott, Lord & Field, JJ., absent.

OPINION

Morton, C. J.

It was decided in Colt v. Learned, 118 Mass. 380, that the written contract upon which this suit is brought did not create a joint liability of the several signers, but that each was severally liable for $ 5000.

After that decision, the plaintiff brought this suit, under the Gen. Sts. c. 129, § 4, containing two counts one against each defendant counting on his several contract. One of the defendants, Theodore Pomeroy, has died since the suit was commenced; and the question presented by this bill of exceptions is whether his executors can be summoned in to defend the action....