Swett v. Southworth

• Decision Date: 21 October 1878
• Citation: Swett v. Southworth, 125 Mass. 417 (Mass. 1878)
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: George W. Swett & others v. Simon G. Southworth & another

125 Mass. 417

George W. Swett & others v. Simon G. Southworth & another

Supreme Court of Massachusetts

October 21, 1878

[Syllabus Material]

Hampden.Contract upon an account annexed for goods sold and delivered, and upon a promissory note given by the defendants to the plaintiffs.Answer: 1.A general denial.2."And the defendants aver that if the plaintiffs shall prove the making of the note declared on, or any of the items in the plaintiffs' bill of particulars, the same have been fully paid."

At the trial in the Superior Court, before Gardner, J., without a jury, the plaintiffs objected to the admission of any evidence of payment under this answer; but the judge overruled the objection.

It appeared that the plaintiffs, who did business in Troy, N Y., sold the goods declared for to the defendants, who did business at Chicopee in this Commonwealth; and that the note in suit was given by the defendants for other goods similarly sold and delivered.It was conceded that the note and account were correct and due, unless the plaintiffs had been paid.

To prove payment, the defendants offered evidence tending to show that the plaintiffs sent the note and account to a collection agency in Troy, N. Y., for collection; that the agency sent the same in the ordinary course of business to an attorney at law in the county of Hampshire, for collection that the plaintiffs, in March, prior to sending the note and account to said agency, had written to the defendants, saying, if the note and account were not settled, they would sue the same; that soon after the receipt of this, on March 10, 1874, in response to a demand from the plaintiffs, they sent to the latter, in payment of the note and account, a note for $ 100, dated February 25, 1874, signed by Gabriel Benn, payable to the defendants in five months, and by them indorsed in blank, together with a check for $ 7.76, signed by the defendants, which balanced the plaintiffs' demand against them.No question was made by the plaintiffs that the note and check were sent by the defendants with the intention of balancing the demand, and that it was so understood by the plaintiffs.The plaintiffs, upon receiving the note and check, indorsed the check, and sent the same, with the note, to the agency in Troy, with instructions to send the note to its correspondent in Massachusetts, and have the same returned to the defendants, and the plaintiffs' original note and account collected.The agency followed these instructions, and the attorney in Massachusetts received the Benn note and check on March 27, 1874.He forthwith indorsed the check, deposited it in bank, and it was duly paid and returned to the defendants in the ordinary course of business.The attorney lost the Benn note soon after receiving it, but did not notify either the plaintiffs or the defendants of the loss until August 13, 1874, when he wrote the defendants that the note was lost, that the plaintiffs refused to receive it as payment, and demanding payment of the original note and account in his hands for collection.

There was also evidence tending to show that Benn was able and ready to pay the note at its maturity, had he been called upon to do so; that the plaintiffs did not authorize their attorneys to accept the Benn note in payment of the note and account in suit, and supposed the Benn note had been returned to the defendants; that the defendants were never given a receipt for the account; and that the note in suit was never returned to them.

The plaintiffs contended that the above evidence did not, in law amount to payment; and requested the judge to rule as follows: "1.If the plaintiffs seasonably...