Shoe And Leather National Bank v. Dix
| Decision Date | 14 September 1877 |
| Citation | 123 Mass. 148 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Shoe and Leather National Bank v. Joseph Dix & others |
Suffolk. Contract against the makers of the following instrument:
Geo. P Sanger, Joseph Dix, R. A. Ballou, Trustees.
"Secured by mortgage of real estate in Boston, duly stamped, to be recorded in Suffolk Registry of Deeds."
This instrument was indorsed in blank by the Boston Water Power Company.
The action was discontinued as to Ballou, because of his discharge in bankruptcy, and the assignee in bankruptcy of Dix was admitted to defend; and the case was then submitted to this court on an agreed statement of facts in substance as follows:
Prior to February 16, 1871, there existed a private association of persons who agreed to act in concert together in purchasing real estate in this and the adjacent counties. This association made the defendants, who, with other persons were then members thereof, its trustees to effect such purchases of real estate, with powers and duties concerning the same, substantially as set forth in the deed hereinafter mentioned. On February 16, 1871, the association, through its said trustees, caused a purchase of property from the Boston Water Power Company to be effected, and the conveyance to be made to the defendants, "as they are trustees for the Brookline Avenue Associates as hereinafter set forth." "To have and to hold the granted premises, with all the privileges, easements and appurtenances thereto belonging, to the said Sanger, Dix and Ballou, as joint tenants and not as tenants in common, and to their heirs and assigns and to the survivor of them and his heirs and assigns forever, in trust nevertheless for the Brookline Avenue Associates for the following purposes: to take, hold, mortgage, lease, manage and improve the same according to the exercise of their best discretion, with full power in the trustees or trustee for the time being, in the exercise of such discretion, to sell at public or private sale any portion or the whole of the real estate hereby conveyed, and to make, execute and deliver good and sufficient deeds to convey the same in fee simple free from the trusts hereby created."
At the same time with the execution and delivery of the deed, a mortgage back to the Boston Water Power Company, in part payment of the purchase money, was executed by the defendants, and the note secured thereby, being the note in question, given, which in March or April, 1876, was indorsed to the plaintiff. The mortgage was never assigned to the plaintiff, having been foreclosed by sale on November 4, 1875.
If upon these facts the defendants were liable, they were to be defaulted, judgment to be ordered against the defendant Dix for a sum stated, to be proved against his estate in bankruptcy, but no execution to issue against him personally, and against the defendant Sanger; otherwise, judgment was to be ordered for the defendants.
Judgment for the defendants.
H. D. Hyde, for the plaintiffs.
S. Bartlett & A. C. Clark, for the assignee of Dix.
P. Cummings, for Sanger.
The question whether the defendants have made themselves personally responsible must be determined by the terms of the note itself. In determining the proper interpretation of any written contract, the court will give full effect to all the terms in which it is expressed. Those terms will not be modified by extrinsic evidence tending to show that the real intention of the parties was something different from what the language imports. They will be taken in their plain, ordinary and popular sense, except where it may be qualified by some special usage, or where the context evidently shows that the parties in some particular case had a different intent. It is no part of the business of the court to make or alter a contract for the parties. Even if it be found that the contract, according to its true meaning, has no legal validity, or fails to become operative, it is not for the court, in order to give it operation, to suppose a meaning which the parties have not expressed, and which...
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State ex rel. Knox, Atty. Gen. v. Edward Hines Lumber Co.
... ... 519; Whitman v ... Porter, 107 Mass. 522; Shoe & Leather Nat. Bank v ... Dix, 123 Mass. 148, 25 Am. Rep. 49; Smith v ... ...
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Hamlen v. Welch
...unless he expressly contracts out of such liability. Magallen v. Gomes, supra; Carr v. Leahy, supra; Shoe & Leather National Bank v. Dix, 1877, 123 Mass. 148, 25 Am.Rep. 49; see, Scott, op. cit., at § 262. And the addition of the word "Trustee" and mention of the name of the trust is not su......
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Larson v. Sylvester
...law. That a trustee can exempt himself from personal liability by stipulation or agreement is well established, Shoe & Leather National Bank v. Dix, 123 Mass. 148, 25 Am. Rep. 49,Carr v. Leahy, 217 Mass. 438, 105 N. E. 445,Neville v. Gifford, 242 Mass. 124, 136 N. E. 160; but a signature as......
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Schumann-Heink v. Folsom
...and does not impose any personal liability upon the trustees. In re Robinson's Settlement, [1912] 1 Ch. 717. In Shoe & Leather Nat. Bank v. Dix, 123 Mass. 148, 25 Am. Rep. 49, the trustees were held to be relieved from personal liability on a note which read, ‘We, as trustees, but not indiv......