Edgerly v. Lawson

• Decision Date: 08 September 1900
• Citation: 176 Mass. 551,57 N.E. 1020
• Parties: EDGERLY v. LAWSON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

176 Mass. 551

57 N.E. 1020

EDGERLY v. LAWSON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

September 8, 1900

COUNSEL

G. C. Abbott, for plaintiff.

G. N Harris, for defendants.

OPINION

LATHROP J.

The auditor has found that the payee of the note was a co-partner in the firm of Redding & Co., in the business of manufacturing and selling an article known as 'Redding's Russia Salve'; that the note declared on was given in part payment for the payee's interest in the firm, and that she at the same time assigned all her interest in the business to the first-named defendant, who signed the note as maker, and that he afterwards assigned said interest to the other defendants without consideration except the indorsement of the note declared on, and other notes given at the same time, and as part of the same transaction. The auditor further finds that the interest of the payee in the business passed from her to Lawson on the delivery of the notes above referred to and $6,000 in money, given as a part of the consideration of said transfer. Lawson does not appear to have been a partner in the firm.

1. The defendants first contend that there was no evidence that the person who transferred the note to the plaintiff was a bona fide holder for value. It appears from the auditor's report that he found that this person was a bona fide holder, for value, before maturity. The auditor has not reported the evidence, and it cannot be said that his finding was wrong. So far as the plaintiff is concerned, if it be true, as the defendants contended before the auditor, that the note was transferred to him after maturity, and without consideration, for the purpose of bringing an action in this state, still he can maintain the action in the right of his transferror, who has been found by the auditor to be a bona fide holder, before maturity, for value. Spofford v. Norton, 126 Mass. 533; Flour-Mill Co. v. Holmes, 156 Mass. 11, 30 N.E. 176. See, also, Roberts v. Lane, 64 Me. 108. So far as the defendant Lawson is concerned, we see no reason why he is not liable.

2. As to the guarantors a more serious question arises. They are sued as indorsers of the note, and it is clear under our decisions that they are not indorsers, but guarantors. It is also clear that a guaranty is here considered a nonnegotiable chose in action, although written by a third person upon the back of a negotiable promissory note. Taylor v Binney, 7 Mass. 479; Upham v. Prince, 12 Mass. 14; True v. Fuller, 21...