Griggs v. Moors

• Decision Date: 20 May 1897
• Citation: 168 Mass. 354,47 N.E. 128
• Parties: GRIGGS v. MOORS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

168 Mass. 354

47 N.E. 128

GRIGGS v. MOORS.

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1897

In February, 1887, one John W. Candler borrowed of plaintiff $10,000, and gave his note, and as security indorsed to plaintiff a mortgage note of A.H. Drisko & Co. and assigned the mortgage. The Candler note being overdue plaintiff brought suit, and attached Candler's real estate, which suit was pending in December, 1892. Defendant was also a creditor of Candler. Just before December 1, 1892 Candler had conveyed all his real estate to one Baker. Defendant believed said conveyance to be a preference void under the insolvent laws and as being in fraud of creditors and feared that the creditors of Candler would be defrauded unless a petition in insolvency against Candler and a bill in equity to set aside said conveyance were filed at once, but considered that for some reason such proceedings could be had to greater advantage to the creditors on some other claim than his own. Having learned of plaintiff's claim and suit against Candler, defendant negotiated with plaintiff's attorney, Carrett, endeavoring to have plaintiff institute such proceedings; but plaintiff refused, preferring to rely on his suit and attachment. Thereupon defendant proposed to guaranty the payment of plaintiff's claim if such proceedings were instituted, and plaintiff agreed to, and at the request of defendant did, file a petition in insolvency against Candler, and a bill in equity against Candler and Baker. Thereupon defendant and plaintiff executed the agreement in suit. Prior to the execution of said agreement, and before any negotiations between the parties, plaintiff had received from Drisko the sum of $400 on the mortgage note of A.H. Drisko & Co., and on August 1, 1892, in consideration thereof, with the approval and consent of all parties at that time interested, gave to Drisko an agreement releasing him from personal liability on the note and mortgage.

The agreement on which action was brought was as follows: "This agreement, made this 1st day of December, A.D.1892, by and between Joseph B. Moors *** of the first part, and Thomas B. Griggs *** of the second part, witnesseth: That whereas, said Griggs is the holder of a promissory note for the sum of $10,000, with interest at 5 per cent., made to him by John W. Candler, *** dated February 6, 1887, and payable in three years from its date, and said Griggs holds as security for the payment of said note a certain mortgage given to said Candler by Oramanda H. Drisko and Jacob Pearson securing their note of $10,000, dated December 15, 1882, *** and said Griggs has heretofore brought suit against said Candler on his said note, which is overdue and unpaid, *** and attached the property of said Candler *** on said writ, *** and said Griggs, at the instance and request of said Moors, and for his benefit, has this day filed a petition in insolvency against said Candler, and a bill in equity against him and one David S. Baker, Jr., to set aside a certain conveyance made by said Candler to said Baker ***: Now, therefore, in consideration of the premises, the said Moors, for himself and his executors and administrators, hereby guaranties to said Griggs and his executors and administrators the full payment, principal and interest, of said debt of said Candler to him, and also agrees to pay to said Griggs the amount of his legal expenses and charges heretofore incurred growing out of his said claim against said Candler, said expenses and charges up to the date hereof not to exceed the sum of $100, exclusive of disbursements; and the said Moors further agrees with the said Griggs to assume and pay all legal expenses and charges and costs in connection with the proceedings against said Candler above mentioned, and to save harmless said Griggs and his executors and administrators from any payment cost or expense on account thereof. It is further understood and agreed that the said Moors shall have the benefit of the said security of said Griggs, and shall assume all risk that the said Griggs' right to avail himself thereof may be lost or impaired by reason of the proceedings against said Candler above mentioned; and that, subject to the rights of said Candler or those claiming under him, or the mortgagors or of those claiming under them, the said Moors shall be entitled to an assignment of said security at any time on paying to said Griggs or his executors or administrators the full amount, principal and interest, of his claims against said Candler, and of all the disbursements and expenses incurred by said Griggs, either by reason of legal proceedings or in the payment of taxes, or in any other way, to protect his lien upon the premises; and also upon delivering to said Griggs an agreement on his part to indemnify and save harmless said Griggs from all costs, charges, and expenses on account of or in any way growing out of the legal proceedings above mentioned; said Moors or those claiming under him giving to said Griggs or his executors or administrators seven days' written notice requesting such assignment; and it is agreed that said Moors shall take said mortgage within two years from the date hereof. This agreement on the part of said Griggs is made subject to the right of said Candler, or those claiming under him, to pay his said note, and require a reassignment of said security, or of the owners of the equity to pay the mortgage debt."

COUNSEL

H.W. Chaplin, for plaintiff.

Robert M. Morse and Lewis Bass, Jr., for defendant.

OPINION

MORTON J.

The first question is whether the performance of his guaranty by the defendant was dependent on the performance by the plaintiff of his agreement to transfer and assign the security, and we think that it was. Whether stipulations in a contract are dependent, so that neither party can call upon the other to perform, unless he is able and willing to perform himself, or whether they are independent, so that the remedy for non-performance is by action only, depends on the sense of the contract as a whole, and the intention of the parties as thus ascertained. Knight v. Worsted Co., 2 Cush. 271, 286; Howland v. Leach, 11 Pick. 151 154. In the present case the defendant guarantied to the plaintiff the full payment, principal and interest, of what Candler owed him, and he also agreed to pay the plaintiff the legal expenses and charges which he had incurred, and to further assume and pay all legal expenses and costs connected with the petition in insolvency against Candler, and the bill in equity against him and Baker to set aside the conveyance which Candler had made to Baker. The plaintiff agreed that the defendant should have the benefit of the security which he had received from Candler, and that, on the defendant's paying to the plaintiff the full amount due him from Candler, and all disbursements and expenses, and delivering to him an agreement to save him harmless from all costs and expenses in any way growing out of the legal proceedings referred to above, he would assign to him the security; the agreement on his part being subject, however, to the right of Candler to pay his note, and require a reassignment of the security, or of the owners of the equity to pay the mortgage debt. We think that these constitute mutual and dependent agreements. The defendant is not entitled to an assignment of the security until he has paid the claim against Candler and the costs, and given the indemnity provided for; and the plaintiff cannot...