Mercantile Guaranty Co. v. Hilton

• Decision Date: 05 March 1906
• Citation: 191 Mass. 141,77 N.E. 312
• Parties: MERCANTILE GUARANTY CO. v. HILTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

191 Mass. 141

77 N.E. 312

MERCANTILE GUARANTY CO. v. HILTON.

Supreme Judicial Court of Massachusetts, Suffolk.

March 5, 1906

COUNSEL

Edgar R. Champlin and Ossian Ray, for plaintiff.

Thos J. Barry and H. J. Jaquith, for defendant.

OPINION

SHELDON, J.

This is an action of contract by the indorsee against the maker of two promissory notes. There was evidence that the notes were given by the defendant to the F. J. Quimby Company for its accommodation, and that before they were due the Quimby Company indorsed them to the plaintiff as collateral security for its indebtedness to the plaintiff under a contract between them. There was no dispute at the trial that subject to a question of usury which was raised the plaintiff's right to recover depended upon the question whether there was anything due to it from the Quimby Company under this contract, and if so, what amount was so due. Testimony was given by one Buchner who was a clerk in the plaintiff's employment and also assistant treasurer of the Quimby Company that there was a balance of at least $1,300 due under this contract from the Quimby Company; and there was no direct evidence to meet this, although the defendant claimed that the testimony of Buchner was somewhat weakened by circumstances which appeared in evidence. The judge ordered a verdict for the plaintiff; and the case comes before this court on the defendant's exceptions.

We do not doubt that if the jury believed the testimony put in at the trial they would have been required to find a verdict for the plaintiff. The fact that the plaintiff held other security from the Quimby Company would not prevent it from enforcing this security for its protection. Creditors have a right to hold and enforce all their security until they shall have been paid in full. New Bedford Savings Bank v. Union Mill Co., 128 Mass. 27; Lincoln v. Bassett, 23 Pick 154: Lee v. Butler, 167 Mass. 427, 46 N.E. 52, 57 Am. St. Rep. 466; Allen v. Woodard, 125 Mass. 400, 28 Am. Rep. 250; Crocker v. Gilbert, 9 Cush. 131; Commercial Bank v. Clarke, 180 Mass 249, 62 N.E. 370. But while this is so, it yet remains true that this is a question of consideration and must be passed upon by the jury. The burden was on the plaintiff to show that it was a holder for value. Huntington v. Shute, 180 Mass. 371, 62 N.E. 380, 91 Am. St. Rep. 309. In Barker v. Loring, 177 Mass. 389, 59 N.E. 66, the defendant did not call the...