Popple v. Day
| Decision Date | 14 January 1878 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Benjamin F. Popple v. Daniel E. Day & others |
Decree affirmed, with costs.
T. M Stetson & F. B. Greene, for the plaintiff.
C. W Clifford & W. Clifford, for the defendants, were not called upon.
OPINION
This was a bill to redeem two mortgages given by the plaintiff to the defendants, one to secure the payment of the plaintiff's promissory note for $ 700, and the other to secure the payment of $ 1000 on a note for $ 3860.38, held by the defendants, and signed by the plaintiff's son as principal and by the plaintiff and one Sisson as indorsers. The case was sent to a master, and comes up on appeal from the decree of a single judge, disallowing the plaintiff's exceptions to the master's report, and giving the plaintiff the right to redeem both mortgages on payment of the amounts due thereon, with interest and costs.
The plaintiff relies on two exceptions to the master's report. As to the first, the evidence fully justified the master in finding a legal consideration for the $ 700 note. The note itself, produced by the defendants, imports a good consideration and makes out a prima facie case, which must prevail, unless overcome by the evidence relied on by the plaintiff. But that evidence, so far from defeating the presumption arising from the note, tends plainly to support it. It is fairly to be inferred from the facts stated, and the circumstances under which the note was given, that the plaintiff gave the note at the request and for the benefit of his son, and upon the understanding that it should be applied by the defendants to the payment of the amount due them on account of a defalcation of the son, who was in the defendants' employ. The master properly so found, and this, with the fact that the note was so credited to the son on the defendants' books, makes a good consideration for it. Forster v. Fuller, 6 Mass. 58. Delano v. Bartlett, 6 Cush. 364.
The second exception depends on the construction to be given to the condition in the mortgage given to secure the payment of $ 1000. It appeared that on account of further defalcations on the part of the son, a note for over $ 3800 was given by him to the defendants, which was indorsed, and, by a separate writing, guaranteed by the plaintiff and Sisson; and that thereupon the son was taken back into...
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