Cook v. Baldwin

• Decision Date: 06 May 1876
• Citation: 120 Mass. 317
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: George M. Cook & others v. Henry Baldwin

120 Mass. 317

George M. Cook & others v. Henry Baldwin

Supreme Court of Massachusetts

May 6, 1876

Suffolk. Contract on five drafts, payable to the plaintiffs drawn on the defendant and alleged to have been accepted by him. Trial in the Superior Court, before Pitman, J., without a jury, who allowed a bill of exceptions in substance as follows:

The plaintiffs introduced evidence tending to show that the defendant wrote the following words on four of the drafts "I take notice of the above, Henry Baldwin;" and on one of these drafts, for $ 600, subsequently made a partial payment of $ 400; that these orders were drawn on the defendant by certain debtors of the plaintiffs in their favor, to pay them for building materials by them furnished to said debtors, with which to build four brick dwelling-houses, one on each of four lots of land in Linwood Street, in Boston; that before any of the orders were drawn, one of the debtors made four several mortgages, one on each of said lots of land, and each to secure said debtors' note to the defendant for the sum of $ 6000, for the purpose of raising money to pay for said land and building said dwelling-houses, which the defendant contested; that the defendant retained the entire consideration for the mortgage notes in his own control, and afterwards made payments for the land, and for labor and materials for erecting the dwelling-houses thereon; and that, at the time the orders were respectively drawn and presented to him, he had a sufficient sum remaining in his control from the consideration of said mortgages to pay the orders in full, according to their terms; and that the work on said houses was carried forward, so that all of said orders would average due on or about September 15, 1872, if the defendant was liable thereon.

The plaintiffs put in other parol evidence; and the defendant put in parol evidence tending to show that he declined to accept or to become bound to pay the plaintiffs.

The plaintiffs asked the judge to rule that the writing of the words on these orders by the defendant was a valid and legal acceptance of the same by him, and rendered him liable to pay the same; and also that writing the words on the order for $ 600, and subsequently paying a portion of the same, constituted a valid and legal acceptance of that order, and rendered the defendant liable to pay the remainder of the same.

The judge refused so to rule, but held that these words, written on the orders, and the acts of the defendant, did not, in law, amount to an acceptance of either of the orders, or render the defendant liable to pay the same or any part thereof, but that these acts were only pieces of evidence; and, upon the whole evidence, found no acceptance proved, and found for the defendant. The plaintiffs alleged exceptions.

Exceptions overruled.

L. Mason, for the plaintiffs.

H. L. Hazelton, for the defendant.

Devens, J. Ames & Morton, JJ., absent.

OPINION

Devens, J.

The whole of the facts, upon which the Superior Court has found that there was no acceptance of the orders, upon which this suit is brought, are not before us, so that even if, when all the facts are found, it is a question of law for the court whether they prove an acceptance, the question is here only whether the writing of the words "I take notice of the above" constitutes in itself such complete proof of acceptance that it was not competent for the Superior Court...