Mauger v. Crosby

• Decision Date: 24 March 1875
• Citation: 117 Mass. 330
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Victor E. Mauger v. Charles H. Crosby & another

117 Mass. 330

Victor E. Mauger v. Charles H. Crosby & another

Supreme Court of Massachusetts

March 24, 1875

[Syllabus Material]

Suffolk. Contract on two promissory notes, each for $ 990 against the defendant, Crosby, as maker, and the defendant, N. B. Bryant, as indorser. Answer, failure of consideration. The defendant Bryant field a declaration in set-off, to recover back the sum of $ 990 and interest. The answer to the declaration in set-off was that the $ 990 were paid by the defendants to the plaintiff, in part payment of the price of a lithographic steam machine. Trial in the Superior Court, before Dewey, J., who, by consent of the parties, before verdict, reported the case for the consideration of this court, in substance as follows:

The making and indorsing of both notes were admitted, and protest and notice to Bryant, as to the first note, was proved. It was also proved, or admitted, that the plaintiff was an importer and dealer in Hughes & Kimber's Lithographic Steam Machines; that on October 31, 1872, he had on hand only one of these machines of the size No.3, which was in the United States warehouse, in New York, in bond; that on that day the defendant Crosby, doing business under the name of Charles H. Crosby & Co., signed the following order or contract, addressed to the plaintiff: "Please furnish us as soon as possible with one of Hughes & Kimber's No 3 Lithographic Steam Machines, for which we agree to pay you the sum of $ 2970, as follows: One third, cash before shipment of machine from New York, balance to be paid in two notes of equal amounts @ two and four months, from date of invoice, said balance to be in two notes duly secured by mortgage in your favor, on machine. Said machine to be fully insured against loss by fire, in one or more good and approved companies; loss, if any, payable to you as mortgagee, and the policy to be held by you as such mortgagee. The note, mortgage and policy of insurance to be made out, executed and delivered to you or to your lawful agent, on or before the arrival of the machine at our establishment, and until said notes, mortgage and policy of insurance shall be so delivered, the title to said machine is not to be deemed vested in us, but is to be and remain your property. It is understood that your engineer shall erect the machine and leave it in perfect working order to our satisfaction, we paying freight from New York to Boston, Mass." This contract was signed in New York, and had reference to the No. 3 machine then in bond. On the return of McClellan, the defendants' agent, to Boston, after an interview with the defendant Bryant, who furnished most of the capital with which Crosby did business, the defendant Crosby wrote the following letter to the plaintiff, dated November 1, 1872: "Inclosed please find Hon. N. B. Bryant's [check] on Security National Bank, Boston, for $ 990; and two notes, one at two and the other at four months, each for $ 990, signed by Chas. H. Crosby & Co., and indorsed by Mr. Bryant, in payment for No. 3 Lithographic Machine, ordered yesterday. Please bill the press to Mr. Bryant direct, as he prefers to give his indorsement rather than a mortgage. Please ship the press as soon as possible by Stonington Line, and insure it for $ 3000. Shipping directions, Chas. H. Crosby & Co., 46 Water Street, Boston, Mass., via Stonington Line." On the receipt of this letter, the plaintiff, on November 2, wrote the following reply, addressed to Chas. H. Crosby & Co.: "I beg to acknowledge receipt of your favor of the 1st inst., covering check $...