Leavitt v. Youngstown Pressed Steel Co.

• Decision Date: 02 June 1933
• Citation: 166 A. 505
• Parties: LEAVITT v. YOUNGSTOWN PRESSED STEEL CO.
• Court: Maine Supreme Court

166 A. 505

LEAVITT

v. YOUNGSTOWN PRESSED STEEL CO.

Supreme Judicial Court of Maine.

June 2, 1933.

Appeal from Superior Court, York County.

Suit by J. Will Leavitt against the Youngstown Pressed Steel Company. Decree for plaintiff, and defendant appeals.

Appeal sustained, and case remanded.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, and THAXTER, JJ.

Waterhouse, Titcomb & Siddall, of Sanford, for plaintiff.

Ralph M. Ingalls, of Portland, Franklin B. Powers, of Youngstown, Ohio, and Edward J. Harrigan, of Portland, for defendant.

PATTANGALL, Chief Justice.

Equity. Appeal by defendant, who sold certain merchandise to the American Specialty Manufacturing Company, and, failing to receive payment therefor, sued to recover the purchase price. The personal property of the debtor company was attached on a writ dated May 14, 1929; the attachment being released by the delivery of a statutory bond signed by the plaintiff as surety on May 20, 1929.

There was a dispute in connection with the amount due from the manufacturing company, and a settlement of the differences between it and defendant was discussed by their counsel. As a result, it was agreed that the manufacturing company should be given a considerable discount on the original bill; and on October 1, 1930, a promissory note for $2,546.09 payable in three installments, the last of which came due April 1, 1931, was executed by the manufacturing company and delivered to defendant. Nothing was ever paid on this note; and in the spring of 1931 the manufacturing company became bankrupt.

Before the note was given, the original suit had been referred and at the January term of the superior court, 1931, the referee filed a report under date of December 17, 1930, stating that the case had been adjusted and that he had been directed to return the report to the court, with the stipulation that the case be entered "Neither party, no further action." This report was not formally accepted, and appears to have been entirely disregarded in the subsequent* proceedings. The suggested docket entry was not made, the rule was reissued at the May term, apparently under the original order of reference, and on June 25, 1931, the referee heard the case. There being no appearance for the manufacturing company, it was defaulted and damages assessed in the sum of $2,700. This report was accepted as of the May term and judgment entered thereon. Thirty days after the rendition of this judgment, defendant demanded payment of the amount due from plaintiff, and threatened to bring suit unless its demand was complied with. The bill before us prays that it be enjoined from so doing, and that the bond in question may be canceled and decreed void, plaintiff's contention being that the note was given and received in full payment for the debt of the manufacturing company, and that defendant, by accepting the note and also by extending the time of payment without plaintiff's knowledge or consent, discharged him from liability as surety on the bond. The court below sustained the bill and permanently enjoined defendant from enforcing, or attempting to enforce, the conditions of the bond against plaintiff. It is from this decree that defendant appealed.

Plaintiff's claim that the note was given and received in satisfaction of defendant's original demand against the manufacturing company is denied by defendant, which insists that the note was accepted conditionally, and, unless paid in full, was not intended to affect the situation in any way. The evidence bearing on this controversy is meager and unsatisfactory, but defendant's position is very much strengthened by the presumption invoked by it on the authority of Kidder v. Knox, 48 Me. 555; Paine v. Dwinel, 53 Me. 54, 87 Am. Dec. 533; Bunker v. Barron, 79 Me....