Kingman v. Soule
| Decision Date | 30 March 1882 |
| Citation | 132 Mass. 285 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Hosea Kingman & another, administrators, v. Oakes S. Soule |
Argued January 27, 1881
Plymouth. Contract, by the administrators de bonis non of the estate of George B. Dunbar, upon five promissory notes signed by the defendant. Trial in this court, without a jury, before Morton, J., who ordered judgment for the plaintiffs; and reported the case for the determination of the full court. The facts appear in the opinion.
The case was argued at the bar in January 1881, and reargued in January 1882.
Judgment affirmed.
R. M Morse, Jr. & H. L. Harding, for the defendant.
H Kingman, for the plaintiffs.
The defendant owes the estate of the plaintiffs' intestate certain notes for sums of money lent to him by the intestate, against which he seeks to set off a certain sum of money paid by him, as he contends, under such circumstances that the estate of the intestate is liable to reimburse him therefor. Bachelder v. Fiske, 17 Mass. 464. Adams v. Butts, 16 Pick. 343.
Dunbar, the intestate, who was a partner with one Southworth, requested the defendant to sign a certain note as surety for them, saying that if he would do so the "defendant should never lose anything by so doing, and that he should not be called upon for the money which Dunbar had and should thereafter put into the defendant's hands until the defendant should be relieved from all responsibility on said note, and that he, Dunbar, would protect him from all loss on account of said note." Some of the sums of money expressed by the notes of the defendant were lent to him before, and some of them after, this promise; and, relying upon it, the defendant signed as surety for Dunbar & Southworth a note for $ 15,000, at the New Bedford Savings Bank, upon which the sum of $ 7650 was due at the death of Dunbar. Southworth was appointed the administrator of Dunbar's estate; and, the bank desiring a living surety in place of Dunbar, Southworth asked the
Such a note was made, signed by Southworth as principal, and by the defendant and the widow and daughter of the intestate as sureties, and transmitted to the New Bedford Savings Bank. It is found by the judge who presided that "the balance due on said note of $ 15,000 was paid by said Southworth by said new note for $ 7650." The new note has now been paid by the defendant, who, after deducting certain dividends received by him from the estate of Southworth, who died insolvent, claims to apply so much of the moneys lent him by Dunbar as is needed to reimburse him for the amount paid by him on this note.
Although it is found that the original note was paid by Southworth, and thus, as a necessary result, that there was no longer any liability on the part of Dunbar's estate to the bank which had lent money upon it, the defendant contends that, in determining his rights as against Dunbar's estate, "the court will look into the actual transaction, and will see that the second note in fact gave the bank nothing on account of the original loan, and that the balance due thereon was paid only when the defendant paid it." It is true that no money was received by the bank, but there may be a payment of one note by the delivery and acceptance of another, if this be so intended by the parties, as there may be a payment of one loan by the use of the proceeds of another. Whether the exchange of one form of security for another is intended as a payment, and thus an extinguishment of the original security, is a question of fact, depending in many instances largely on the intent of the parties, which in this case has been settled by the finding made. Pomroy v. Rice, 16 Pick. 22. Bryant v. Pollard, 10 Allen 81. Tucker v. Drake, 11 Allen 145.
The bank did not receive in the second note a new security for the original loan. When it received the second note as payment of the first, a new loan was created. It necessarily discharged the estate of Dunbar, which was part of the security of the original loan, and relied upon a new promise...
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