Root v. Burt

• Decision Date: 23 October 1875
• Parties: Ransford Root v. Lyman Burt
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

118 Mass. 521

Ransford Root v. Lyman Burt

Supreme Court of Massachusetts

October 23, 1875

Hampden. Contract. The second count of the declaration was as follows: "The plaintiff says he sold certain real estate to the defendant, and the defendant agreed to pay in part therefor by giving him two promissory notes of $ 100 each signed by Thomas J. Pomeroy, and which the defendant agreed to guarantee and make himself liable therefor; but the defendant did not do as he agreed respecting said notes, but refused so to do, and the plaintiff says the defendant owes him $ 218.10 as part pay for said real estate." Answer 1st, a general denial; 2d, the statute of frauds.

At the trial in the Superior Court, before Brigham, C. J., the plaintiff introduced evidence tending to show, that in April 1872, the defendant desired to purchase of him certain land, the price of which was $ 300; that the defendant agreed to the price, but wanted the plaintiff to take in part payment two notes of $ 100 each, signed by Thomas J. Pomeroy, and payable on demand to the defendant. The plaintiff declined to take the notes, and told the defendant he was acquainted with Pomeroy, the maker, and did not consider him good, and he would not give a cent for them, but that if he would back them up all right and strong, and make them good, he would take them, and he said he would; that a day or two afterward he brought the notes to the plaintiff in the condition they now are, (one note was indorsed by the defendant "without resource," and the other "without recourse,") and the plaintiff took them in his hands, and had the opportunity to read them; that the plaintiff first read the indorsement on the first note aloud to the defendant, as follows, and supposed he was reading it correctly, "Pay Ransford Root, or order, without reserve. Lyman Burt;" that he glanced at the other note, and being partially blind, did not read the corresponding indorsement on it, but thought they were both alike; that when he read the indorsement aloud to the defendant, "without reserve," the defendant said nothing, and the plaintiff said, "That's a queer indorsement, I should think; I am to have a thorough indorsement by you," and objected to it, but the defendant said, "It's all right," and thereupon the plaintiff, supposing they were indorsed as the defendant had agreed, and that the defendant had made himself liable; and so supposing, partly from the writing itself, and partly from the defendant's agreement, and more from the writing than the agreement, and not having read the writing, "without recourse," accepted the notes for the face thereof, and the defendant paid him $ 100 in cash, and he gave the defendant the deed; that he did not again look at the notes till April, 1873, when he demanded payment of Pomeroy, and, on his refusal, demanded payment of the defendant, who also refused; that as soon as the plaintiff ascertained that the notes were not indorsed according to the agreement, he tendered them to the defendant, who refused to receive them. The plaintiff did not tender the money received.

There was also evidence that, some time after the transaction, the defendant, in conversation with the witness, alluding to some difficulty he had with the plaintiff, said "he guessed Root wouldn't make much out of it by the time he got his pay on those notes;" that he had given him two notes of Pomeroy's indorsed "without recourse." The witness asked him if Root knew they were indorsed "without recourse," and the defendant smiled and said, "I don't know; I did n't tell him."

Upon this...