Colt v. Learned

• Decision Date: 16 September 1875
• Citation: 118 Mass. 380
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Henry Colt & others v. Edward Learned & another

118 Mass. 380

Henry Colt & others v. Edward Learned & another

Supreme Court of Massachusetts

September 16, 1875

Berkshire. Contract by the executors of William Pollock against Edward Learned and Theodore Pomeroy. The declaration was as follows:

"And the plaintiffs say that said Wm. Pollock loaned to the Ni-Wot Mining Co. upon the twenty-fifth day of July, a. d. eighteen hundred sixty-five, fifteen thousand dollars, and in consideration that said Pollock would make said loan, the defendants, together with said Pollock, at the time said loan was made, made and signed a written guaranty, a copy of which is hereto annexed, jointly and severally guaranteeing the payment of said loan, and the interest thereon. And the plaintiffs say that upon the sixteenth day of December, a. d eighteen hundred and sixty five, the sum of five hundred and twenty-five dollars was paid upon said loan, and that the balance of said loan has never been paid, though long since due and payable.

"And the plaintiffs say that said Pollock in his lifetime, and the plaintiffs as his executors, have since his decease also demanded of said Ni-Wot Mining Co., the balance of said loan and said Ni-Wot Mining Co. has neglected to pay the said balance, and due notice of the nonpayment thereof was given to the defendants by said Pollock in his lifetime, and demand for payment made upon them, and the plaintiffs as the executors of said Pollock have, since his decease, notified the defendants of the nonpayment by said Ni-Wot Mining Co. of the balance of said loan, and made a demand for payment upon them. And the defendants neglected and refused to pay said Pollock in his lifetime, and have since his decease neglected and refused to pay the plaintiffs as executors of said Pollock.

"And said Edward Learned and Theodore Pomeroy, the defendants, owe the plaintiffs, in their said capacity as executors of said Pollock, two thirds of the balance of said loan remaining unpaid after the payment of the said sum of five hundred and twenty-five dollars as aforesaid, together with the interest on said two thirds of said balance."

The copy annexed was as follows: "Pittsfield, July 25th 1865. William Pollock having this day loaned the Ni-Wot 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 defendants demurred to the declaration, assigning as cause of demurrer that "the same does not state a legal cause of action substantially in accordance with the Gen. Sts. c. 129 in this, that the defendants would not be and are not liable to the plaintiffs upon any such contract as alleged under said declaration and action." In the Superior Court, the demurrer was sustained and judgment ordered for the defendants. The plaintiffs appealed.

Demu...