Kellogg v. Thompson

• Decision Date: 20 May 1886
• Citation: 6 N.E. 860,142 Mass. 76
• Parties: KELLOGG v. THOMPSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

142 Mass. 76

6 N.E. 860

KELLOGG v. THOMPSON.

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1886

This was an action of tort, brought to recover damages by reason of an alleged conversion of a note for $3,000 signed by one Charles E. Johnson, to order of one Wilson, and indorsed by said Wilson and one Murphy and one McCarthy and the plaintiff. At the trial in the superior court, before KNOWLTON, J., the plaintiff's evidence tended to show that during the latter part of May, 1883, he held said note in pledge from said Wilson, to secure the payment of about $2,950, which was then due him from said Wilson; that on or about June 10, 1883, the plaintiff delivered said pledged note to said Wilson, directing him to sell or get it discounted for him, (plaintiff.) Plaintiff further testified that "on or about June 10, 1883, Wilson came to the office with Murphy, of Murphy & McCarthy, and he stated to me that he had a party who would buy this $3,000 note, he thought, with the indorsement of Murphy & McCarthy upon it and he wanted to know, if he sold the note, if I would allow him to use a portion of the proceeds. I told him that he might get the note discounted for me; that I would take $1,500 of the proceeds of that note. I would allow him to have the balance over and above the $1,500 which he received from it, upon his handing me collateral that was sufficient to cover the balance, and Murphy & McCarthy indorsed the note. I also indorsed it. Wilson took it for the purpose of getting it discounted for me. He brought it back in a very short time, and said the party whom he expected to take it and whom he tried to see, he could not find." Plaintiff then testified that Wilson afterwards came to him, and asked for the note, saying he could get it discounted; and plaintiff allowed him to take it, but did not know where it was until some time in July, though Wilson said it was all right, and he would get it discounted or return it. It was also in evidence that Wilson, after taking the note, took it to the defendant, to whom he was owing money, and requested the latter to discount the same, but defendant declined to do so; that Wilson stated that when it was discounted he would give defendant $1,000 on account; that defendant wanted to keep the note, but delivered it to Wilson, taking a receipt therefor, according to which Wilson was to return said note that day or pay defendant the sum of $1,000; that Wilson told defendant, at the time he presented the note to him, that when he got it discounted, he should have to give plaintiff $1,500, as said note belonged to him, and that, after paying that and $1,000 to said defendant, he was to have the balance of said note himself; that after taking said note from defendant, and receipting therefor, Wilson failed to sell or get the note discounted, and returned it to the defendant, and that he took the note and made similar efforts several times, but without success; that on June 16, 1883, defendant loaned Wilson $400 in money, and Wilson gave to defendant the following note:

"$425. JUNE 16, 1883.

"On the nineteenth inst., after date, without grace, I promise to pay to the order of Samuel Tompson four hundred and twenty-five dollars, value received, with interest at the rate of ten per cent. a month until paid. Collateral in Johnson's note of three thousand dollars, indorsed by Murphy & McCarthy; and note of A. Kingman, dated June 16, 1883, three months; and note of Giles for $141, dated June 16, 1883, three months.

"W.J. WILSON."

After the introduction of the above evidence, Wilson testified that neither at the time he signed the note and got a check of $400, nor at any time before that, after he had begun to negotiate or talk about the loan, was anything said by defendant about taking the $3,000 note as collateral for what he was to advance; that it was some time afterwards that defendant said the $400 was loaned on the $3,000 note as collateral. To the admission of these questions the defendant objected, but they were admitted by the court. Before the note of June 16, 1883, was put in, Wilson had testified to his several interviews with the defendant, and to defendant's having agreed to discount the $3,000 note, and give him $1,500 in cash out of the proceeds of it, and to apply the balance upon old loans; to the defendant's refusing to pay the money, or give up the note after having obtained his (Wilson's) signature to the paper of June 23, 1883; and to other things tending to show that no advancement or payment was ever made by the defendant on account of said note. He also testified to having borrowed $400 from the defendant on the sixteenth of June, 1883, but not on the $3,000 note, and having given his note of $425 for it. Plaintiff's counsel asked the defendant to produce said note of $425, and, upon its being handed to him, put it in evidence. He then claimed that he was surprised by the clause in the $425 note referring to the $3,000 note, and the court ruled that questions (excepted to) might be put for the purpose of eliciting evidence to meet the evidence contained in said clause, so far as the same tended to contradict the former evidence introduced by him, and that the evidence so elicited could not be received to affect the rights of either party under the note and contract of June 16th. The plaintiff's evidence further tended to show that, after Wilson had made several ineffectual efforts to get said note discounted, he agreed with defendant that the latter should discount said note, and should pay Wilson $1,500 out of the proceeds, and the balance should be applied to old loans due from Wilson to defendant, and that Wilson then signed the following receipt:

"Samuel Tompson holds a note belonging to me signed by Charles E. Johnson, dated April 17, 1883, on six months, indorsed by myself, Murphy & McCarthy, and H. Kellogg, Jr., to be held by him for cash advanced, and collateral for my liability to him.

"June 23, 1883. W.J. WILSON."

[6 N.E 863] --That after Wilson had signed said receipt said Tompson took it, and declined to advance to said Wilson anything further on account of said note of Johnson, which is the one sued for, and thereafterwards claimed the same as of right. There was also evidence on the part of the plaintiff tending to show that he did not know of the transactions between Wilson and defendant, and that the financial condition of Johnson, at the time the note was taken by defendant, was good, as was also the credit of Murphy & McCarthy. This evidence was controverted by the defendant, whose evidence tended to show that in June, 1883, said Wilson was indebted to the defendant to the amount of several thousand dollars; that on the ninth of June, 1883, defendant loaned said Wilson certain moneys, and took, as collateral security, certain drafts and assignments of certain claims; that the loan matured on June 13, 1883, and Wilson, having in the mean time collected the debts assigned, was pressed by defendant for payment. On the sixteenth of said June, Wilson brought in and delivered to the defendant said note sued for, and for the other notes named in said note of June 16th; that defendant thereupon loaned Wilson $400 in money, and drafted the note for $425 dated June 16th, which Wilson read and signed; that Wilson promised that he would take the note for $3,000 the next day, and have it discounted, and repay defendant the money loaned him on said June 9th, and for this purpose defendant let Wilson take said note for $3,000 twice, taking from him each time a receipt agreeing to return said note, or the amount of the loans; that afterwards, on two or three occasions, he sent an agent with said Wilson to procure the discount of the note; that Wilson failed to discount it; that defendant from time to time let said Wilson have, during the efforts to get the note discounted, additional sums of money, taking other collateral therefor; and that finally, on the...