Lessard v. Et Ux.

• Decision Date: 03 December 1946
• Citation: 49 A.2d 814
• Parties: LESSARD v. DARKER et ux.
• Court: New Hampshire Supreme Court

49 A.2d 814

LESSARD

v.DARKER et ux.

Supreme Court of New Hampshire.

Dec. 3, 1946.

Exceptions from Superior Court, Belknap County; Goodnow, Judge.

Action by John J. Lessard against Guy E. Darker and wife on a note. Defendants' motion to order plaintiff to exhaust the security furnished by named defendant's assignment of a contract to plaintiff before resorting to defendants' property, attached by plaintiff, was denied, and defendants bring an exception.

Exception overruled.

Action to recover balance due on a note given by Guy E. Darker (hereinafter referred to as defendant) to the plaintiff February 21, 1945. Trial by the Court, Goodnow, J., who made a ruling to which defendant excepted.

The pertinent facts are as follows: The note read ‘payable when the amount due me under a certain contract entered into between myself and H. A. Stiles Company dated February 2, 1945, becomes due and payable.’ It was accompanied by an assignment of said contract. August 3, 1945 defendant having made no payment on the note, and no part of the contract referred to having been performed, plaintiff sued defendant and attached his equity in real estate and certain personal property. Among the personal property attached was an automobile which was sold by agreement and the proceeds of the sale turned over to the plaintiff and credited on the note. There has been no other payment made. After the attachment plaintiff began performance of his contract and in due time there became due him from the Stiles Co. $1,505.30, which the Stiles Co. will not turn over to the plaintiff until he secures releases of two other subsequent assignments made by the defendant to other creditors. This these other assignees will not do.

The Stiles Co. is a Massachusetts concern, and in order to recover the amount due by it suit would have to be brought in that state.

August 31, 1945 defendant filed a bill in equity seeking a decree to the effect that the note sued on was not then due and payable. After hearing the bill was dismissed, and on January 23, 1946 the parties filed a stipulation in the action at law in which it was agreed that ‘if the above entitled action is not settled to the satisfaction of both parties on or before February 5, 1946, said action shall be marked either ‘continued for judgment’, or ‘judgment’ at the election of the plaintiff.'

April 30, 1946 defendant for himself and his wife Esther Darker, who is a part owner in common with her husband of the attached real estate, moved to intervene, and that plaintiff be ordered to exhaust the security furnished by the assignment of the Stiles contract before resorting to the attached property. The first part of the motion was granted and the second part denied. It is to this denial that defendants excepted.

Findings: ‘The Court, feeling that Lessard's ability to collect on the Stiles contract was not clear and undisputed, and further feeling that even if his right to collect on that contract might eventually be enforced, it was not a reasonably prompt and efficient method for him to use under all the circumstances, denied the motion that he be ordered to exhaust the security furnished by the assignment of that contract.'

A bill of exception was allowed.

Harold E. Wescott, of Laconia, for plaintiff.

Maurice A. Broderick, of Manchester, for defendant.

BURQUE, Justice.

Ordinarily the rule of marshalling assets does not apply as between debtor and creditor; the doctrine applies only as between different judgment, attaching or lienholding creditors. The equity is not administered at the instance of the debtor...