Smith v. Collins

• Citation: 115 Mass. 388
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Decision Date: 29 June 1874
• Parties: Lucien S. Smith v. Abram W. Collins & others

115 Mass. 388

Lucien S. Smith v. Abram W. Collins & others

Supreme Court of Massachusetts

June 29, 1874

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Suffolk. Contract against Abram W. Collins, Amos M. Drake and Norman F. Newton, to recover the sum of $ 7000, and the sum of $ 12,000, alleged to have been lent to them as copartners by the plaintiff. Newton made no defence. The defendants Collins and Drake in their answers denied that they were partners with Newton.

At the trial in this court, before Wells, J., the jury found for the plaintiff, and a bill of exceptions was allowed. On a motion for a new trial, the verdict was set aside as to Collins, and so much of the bill of exceptions as bears upon the question of the liability of Drake, is in substance as follows:

The plaintiff contended that the first loan of $ 7000 was made to Drake July 30, 1870; and that the second loan of $ 12,000 was made to Newton September 12, 1870. Both loans were made at Albany, in the State of New York. Newton failed in business September 14, 1870.

The plaintiff was a dealer in hogs and cattle, living in Albany, New York. Collins and Drake were dealers in hogs, and occasionally in cattle, and lived in Brighton, Massachusetts. Newton was a cattle dealer, and lived in Boston. Collins and Drake had been in business as partners for many years.

The plaintiff testified in substance as follows: I have known Drake twenty-five or thirty years. He married my sister. Before 1870, I had a great deal of business with Drake and Collins as partners. I also have had business with Drake alone, and with Collins alone. I met Drake in July, 1870, at West Albany, at the cattle yards. He said to me, "If we want some money, can you lend it to us?" I said I could. Drake said, "I will let you know in half an hour." Did not say who "us" were. Fifteen minutes later Drake came back, and said, "Can you lend us $ 7000?" I told him I would, went into the hotel and wrote a check for $ 7000 to A. M. Drake, or order or bearer, and signed it. Drake indorsed it and it was paid. Drake came to my house that evening, and in conversation there said that he and Collins and Newton were in the cattle business together, were doing well and making money. I had never had any business with Newton at that time; merely knew him to pass the time of day. Drake said, "We are buying cattle, making a nice thing of it. Being in with Newton makes it better, as we do not have to go to Albany so often. Newton has a good commission trade." Drake also said, "If Newton should be in Albany and want money, you can let him have it. It will be all right." "I don't know Mr. Newton," I said. Drake said, "Newton is as good as old gold; and if not, Collins and I are with him, and you know we're good." This was on Saturday night. On Monday morning Drake brought me a check to keep to show that he (or they) had had the $ 7000. His name was on it.

Drake wrote me a letter; this is the letter. ^[*] Collins brought it to me at West Albany, I should think, on August 14 or 15.

Drake told me whenever I wanted money to speak to Newton if he or Collins were not up; and I did speak to Newton on August 29, and told him I wanted some money. He said he could let me have $ 1000, if that would be enough. I told him it would, and he told me to draw on Swan & Newton for $ 1000, which I did and got the money.

On September 5, I met Drake at Albany, and told him I wanted some money. He said, "I'll get it for you in a few minutes." He found Newton, and they paid me fifty dollars in money for interest. One of them handed me out a New York draft for $ 2000. Drake passed me out Newton's check for $ 2000 on the National Market Bank, Brighton. They told me to draw on Swan & Newton for $ 2000. I agreed not to draw until next day, to give them a chance to sell their cattle. Newton's check for $ 2000 I agreed to hold; they asked me to. It was given to me by Drake, and he told me I was to hold it, and one or the other of them would bring me up the money the next week. I have had it in my possession ever since; have never indorsed it. I did draw on Swan & Newton for $ 2000, and they paid the draft, but have since demanded it of me, and claim that I must pay it back. After we had got this all settled up, Drake said to me, "If Newton wants money at any time and we are not here, all right, let him have it; we are good. We'll pay it."

I was at West Albany, September 10, and saw Newton. I asked him if the money had been sent up for the check. He said they hadn't come up, that probably Collins or Drake would be up in the morning; but if they didn't come he should have to borrow some money. Asked if I had any. I told him I had. This was on Saturday. On Monday he came to me and told me neither Collins nor Drake had come up; and asked me if I could get him the money on a check which he had with him and showed me. I asked him particularly how much money he wanted, and what he wanted it for. He said he wanted $ 12,000, and that he wanted it to pay a note at the Exchange Bank in Albany, which had been given to pay for cattle he had had with Collins and Drake some time previous. He said he would give a check for $ 14,000, and that would cover the $ 2000 check not paid. I went with him to my bank and got a cashier's check for $ 12,000, payable to me, and indorsed and gave it to him. The check was paid, and the amount of it was charged to me in my account at my bank. None of this $ 12,000 has been repaid to me, and none of the $ 7000 has been repaid to me, except as I have stated.

On cross-examination the plaintiff testified: I had known Newton by sight for five or six years; had heard of Newton and Wales as partners. Drake brought me a check for $ 7000 after I lent him the $ 7000. He brought it to me as a memorandum check. He said I was to hold it and they would bring the money up to me when I wanted it. I gave that check back to Drake; didn't see what he did with it. Did not see that it was torn up. He gave it to me on Monday, August 1, in the morning. No, it was not the same day that I lent him the money. I lent that money to Drake and Collins. Drake said, lend us $ 7000. He did not say who "us" meant. No person was with him. Not a word was said about Newton. Nothing was said about Newton until that evening. He was gone fifteen minutes. He said, "we" want $ 7000. He did not mention Collins. I let him have it by check on Saturday. He brought me a check on Monday. I knew Collins and Drake had been partners for many years. I used to meet Newton at Brighton and Albany; had heard it reported that he was a partner of Wales. The check he gave me when I lent him the $ 12,000 was for $ 14,000. It was protested. It went through the regular course of banking business. The $ 14,000 check included the $ 2000 check. Drake borrowed $ 7000 of me on Saturday, July 30, 1870, at the New York Central Hotel. I know nothing in writing was handed or given me at the time to show for it. I lend money in that way. Drake had asked me that morning if I would lend them some money. I said yes. I gave him a check for $ 7000. I had $ 20,000 in the bank. I know that is all of that transaction. Newton was not present at either interview, in my sight. He didn't use Newton's name. He said "us." At that time I supposed he meant Collins and Drake. I let him have the check without taking anything to show for it. On next Monday, he handed me a check signed A. M. Drake and Norman F. Newton. I said it was no matter about any check. He said he thought he would make it good. Had got Newton's name on it. I made the remark I did not need any two names. I was not particular as to two names. He said he wanted to make it good. He said he gave it to me as a memorandum check I said I wasn't particular, it was well enough, something like that. He said he would bring me the money. He has said over and over again, that that check was not to be used. I mean to say, I understood he was borrowing for Collins and Drake. He said "we," "us," and I understood Collins and Drake. He had told me they were in business with Newton, Saturday night. At the time of borrowing, Newton's name was not mentioned.

I swear it was on September 5 I saw Drake, and he brought Newton to settle. I don't remember receiving any letter from Drake but the one before mentioned, between lending the money and September 5. I know I didn't receive any other.

Between July 30, and September 12, I don't remember seeing Drake more than once. I might have seen him half a dozen times. I don't remember any but September 5, now. The draft for $ 1000, on Swan & Newton, was drawn August 29. I told Newton I wanted money; could get along with $ 1000. He said they hadn't sent him up the money as he expected, and I told him I could get along with $ 1000. On September 5, I met Drake, and he went after Newton. Drake didn't ask me if Newton had paid the money; I met him and told him I wanted it. They gave me fifty dollars in money, draft on New York $ 2000, and this check signed by Newton, $ 2000. Nothing else was given me. That check signed by Drake and Newton. I gave it to them. That was not a negotiable check. It was given as a memorandum check. I mean to swear it was not given to be used. It would draw the money, if they had any in the bank. It was given as memorandum. Drake said, "Keep that check until next week, and we will bring the money up or send it to you." I took Newton's check from Drake. Drake was at my house on July 30. When Drake told me at my house if Newton wanted any money to let him have it, I said that I didn't know anything about Newton financially. If I let him have any money, I did it on the strength of Drake and Collins.

In answer to...