Isaac Farrington v. David M. Hodgdon &Amp; Others

• Citation: 119 Mass. 453
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 11 January 1876
• Parties: Isaac Farrington & another v. David M. Hodgdon & others

119 Mass. 453

Isaac Farrington & another v. David M. Hodgdon & others

Supreme Court of Massachusetts

January 11, 1876

Argued November 10, 1875 [Syllabus Material] [Syllabus Material]

Suffolk. Contract by Isaac Farrington and John G. White doing business under the firm name of the Eagle Woollen Mills, upon a promissory note for $ 2236.82 dated November 7, 1872, and made by the defendants payable to their own order and indorsed by them. At the trial in the Superior Court, before Pitman, J., without a jury, the following facts appeared:

The plaintiffs sold the defendants merchandise, for which, on November 7, 1872, they received three notes, signed and indorsed by the defendants, each payable in six months from its date one dated October 25, for $ 2236.82; one dated November 1, for $ 2236.84; and the third the note in suit. On Saturday, November 9, the plaintiff sold the first two of these notes to one Smith, a note broker, and received his check for their price. That night the great fire in Boston occurred. On Monday following this check was presented but was not paid; and one of the plaintiffs accordingly visited Smith, who informed him that he was unable to pay his check, but that he had heard Hodgdon say that morning that he should pay all his debts in full and not ask for any favors. The plaintiffs, believing this statement, were thereby induced to take the notes back and return Smith's check. The next day they learned from Hodgdon that this statement was not true; that the conversation never occurred; and that he should have to compromise with his creditors. They thereupon demanded of Smith that he should take the notes back; and, after several interviews, succeeded in forcing him to do so on December 6.

On November 18, the following agreement was drawn up for signature by the creditors of the defendants, and about a week thereafter was signed for the plaintiffs by White:

"Boston, November 18, 1872. We, the undersigned creditors of Messrs. D. M. Hodgdon & Co., agree to accept (75%) seventy-five per cent. of the amount of indebtedness as set against our respective names, said 75% to be paid in two, four & six months from December 15th, with interest at 7% per annum in notes of said D. M. Hodgdon & Co. The amount due in trust amounting to thirteen thousand dollars to be also extended with the merchandise indebtedness, and provided all merchandise indebtedness accept the same settlement. Eagle Woollen Mills by John G. White, Tr., $ 6710.48." The defendants learned that the two notes had been sold to Smith before the fire, and that the plaintiffs had been induced on Monday, by false representations, to take them back, within a day or two after the fire, and before the compromise paper was drawn up, and knew that the plaintiffs were making efforts to get Smith to take back the notes. Whether they knew that the plaintiffs expected to succeed was in dispute.

At the trial the plaintiffs offered the note in suit; the signature and indorsement were admitted; they proved that the defendants were partners, and rested. The defendants then offered the agreement. The plaintiffs objected to the competency of the paper, but the judge overruled the objection and admitted it, to which the plaintiffs excepted. It was admitted that the notes, which, by the terms of the agreement the defendants were to give in settlement of their debts, were never given or tendered to the plaintiffs.

The judge found as facts that the figures set against the business name of the plaintiffs on the agreement were so placed by them to represent the aggregate indebtedness of the defendants on the three notes; that sometime before December 15, 1872, and after signing the agreement, the plaintiffs had parted with the ownership and possession of two of the notes, and so notified the defendants; that the holder of the notes insisted on payment in full, and that the defendants were compelled to pay the same at maturity to save suit, and their property from attachment; that they had notified the plaintiffs beforehand that they should be compelled so to do unless the plaintiffs protected them; that the defendants had always been ready to give the settlement notes provided for in the agreement, if the three notes were surrendered by the plaintiffs, but that they had always refused to give a settlement note for the one now in suit unless they were protected against the other two; that when the note in suit matured, one of the defendants called on the plaintiffs and offered to pay "the difference between the amount that had been paid by the defendants on the first two notes, and seventy-five per cent. of the whole indebtedness on the three notes," which was refused; and that, two days after, a formal legal tender was made of $ 559.20, as and for the balance due upon such an adjustment, which was also refused.

The judge found that this was not a correct legal computation upon the defendants' theory. But no question appeared to have arisen between the parties, except the principal one in the case. The judge also found that the agreement had been signed by most of the creditors before the plaintiffs signed; that it was executed by all the other creditors, and that, except as to the plaintiffs, all of its terms and provisions had been fully complied with by the parties thereto.

The plaintiffs offered evidence of conversations between them and their agent on the one part, and the defendants on the other, tending to show the understanding of the parties as to the two notes aforesaid, and their oral agreements; but the judge excluded all such evidence of conversations prior to the execution of the agreement as inadmissible to vary a written contract. The defendants made an offer of judgment for $ 559.20.

The plaintiffs...