Lathrop v. Page

• Decision Date: 24 June 1880
• Citation: 129 Mass. 19
• Parties: Joseph H. Lathrop, executor, v. William W. Page
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

129 Mass. 19

Joseph H. Lathrop, executor, v. William W. Page

Supreme Court of Massachusetts

June 24, 1880

Argued November 11, 1879

Suffolk. Contract by the executor of the will of Lorenzo S. Cragin against the defendant as indorser of a promissory note for $ 2500, dated August 6, 1875, payable two years after date to the order of the defendant, and signed by Harlan Page. On the back of the note were the following indorsements:

"We hereby guarantee the payment of the within note at maturity value received, waiving all right of notice and demand.

"H J. Culver.

Chas L. Currier.

D. W Page.

C. N. Conkey.

William W. Page."

"Received of H. J. Culver, C. L. Currier, D. W. Page and C. N. Conkey, Nov. 12, 1877, two thousand and sixty dollars on the within note, being four fifths of the amount thereof, and they are, in consideration thereof, hereby forever released from any attempt to collect from them or either of them the balance due on this note. Joseph H. Lathrop, executor."

The answer contained a general denial; denied that the defendant indorsed the note, and alleged payment and a release. Trial in the Superior Court, without a jury, before Brigham, C. J., who found that Harlan Page made, and the defendant indorsed, the note declared on; that, at the maturity of the note, legal demand of payment was made on Harlan Page, who failed to make payment, and legal notice of such demand and failure of payment was duly given to the defendant; that the persons, whose names appear on the back of the note as guarantors thereof, were guarantors thereof, and were released, in manner and form as stated on the back of the note, and that the plaintiff and defendant executed an indenture the material parts of which appear in the opinion.

Upon these facts, the judge ruled that the plaintiff was not entitled to recover; ordered judgment for the defendant; and reported the case, for the determination of this court, on the question of law arising on the releases. If the ruling was correct, the judgment was to stand; otherwise, a new trial to be liad.

The case was argued at the bar in November 1879, by S. Albee, for the plaintiff, and E. Avery, for the defendant; and was afterwards submitted on briefs to all the judges.

OPINION

Ames, J.

Two grounds of defence are advanced as an answer to the plaintiff's claim: first, that, by the memorandum indorsed upon the note, the plaintiff had released certain guarantors upon whom the defendant had a right to rely, and that the effect of this transaction was to release the defendant himself; and secondly, that, by the express terms of the indenture which is in the case, the plaintiff had released the defendant from all claims, including this particular one.

As to the first of these defences, even if the plaintiff had acquired any such right, legal or equitable, in the guaranty signed by Culver and others, that it was in his power to release the guarantors to the prejudice of the defendant, we do not find that he has done so. It appears that, about three months after the maturity of the note, and when, as we must suppose, the liability of the guarantors had become fixed, he received from them four fifths of the entire amount due, and gave each of them a release from the remainder. This was not the result...