Com. Trust Co. v. Coveney

• Decision Date: 05 January 1908
• Citation: 200 Mass. 379,86 N.E. 895
• Parties: COMMONWEALTH TRUST CO. COVENEY v. COVENEY. COVENEY v. COMMONWEALTH TRUST CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

200 Mass. 379

86 N.E. 895

COMMONWEALTH TRUST CO. COVENEY v. COVENEY. COVENEY v. COMMONWEALTH TRUST CO.

Supreme Judicial Court of Massachusetts, Middlesex.

January 5, 1908

COUNSEL

Philip P. Coveney, for appellant.

Southard & Parker, for appellee.

OPINION

KNOWLTON C.J.

The first of these suits was brought by the indorsee against the indorser to recover the amount of several promissiory notes. The second is an action brought by this indorser against the holder of these notes, upon an alleged contract made prior to the making of the notes, in which the defendant, for a valuable consideration, agreed to discount notes for the plaintiff and renew them from time to time, and to require payment only of such sums as the plaintiff should realize as profits from the sales of his real estate. The first two counts of the declaration in this action allege the making of the contract, performance by the plaintiff, and a breach of it by the defendant in endeavoring to enforce collection of the notes according to their terms instead of postponing the collection until profits are realized by the plaintiff from the sales of real estate. The third count is more general alleging the existence of indebtedness from the plaintiff to the defendant, and a contract, for a valuable consideration to look for the liquidation of the indebtedness only to the profits realized from sales of the plaintiff's real estate, and a breach of the contract by attempting to collect the indebtedness by a suit. As a defense to the first action the defendant sets up in his answer the contract relied on in the second action. The cases come to this court upon a demurrer to this answer in the first action, and a demurrer to the declaration in the second action. The principal questions of law are the same in both cases.

In neither case has any question of pleading been argued, but both parties have discussed the cases on the merits, upon the assumption that the contract set up in defense of the first action and declared on in the second action was an oral contract. The counsel of the party relying upon it expressly concedes in his briefs that it was an oral contract. Without considering any nice questions of construction, we shall, therefore, treat the averments of the pleadings in both cases as showing it to be an oral contract.

The contention of the defendant in the first action is that it was an independent, executory contract referring to the course of dealing and the conduct of the parties in the future, by which the plaintiff agreed that notes made payable and discounted in the usual way should not be collected when due, but should be renewed from time to time and finally paid only as profits should be derived from sales of real estate sufficient for the purpose. As we understand his contention, it is that such are agreement, as between the original pa...