Tait v. Downey

• Decision Date: 03 June 1929
• Parties: TAIT v. DOWNEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

267 Mass. 422

166 N.E. 857

TAIT

v.DOWNEY.

Supreme Judicial Court of Massachusetts, Hampden.

June 3, 1929.

Appeal from Superior Court, Hampden County; Henry T. Lummus, Judge.

Suit by George G. Tait against Charles J. Downey. Decree for plaintiff, and defendant appeals. Affirmed.J. P. Kirby, of Springfield, for appellant.

J. E. Kerigan, of Springfield, and J. E. Murphy, of Salem, for appellee.

PIERCE, J.

This is a suit in equity brought by George G. Tait, an indorser on a note of a corporation called Ford's Wawbeek Springs, Inc., against a subsequent indorser, Charles J. Downey, on an oral agreement, made by all the indorsers together, that each would be responsible for his share of the liability incurred by indorsement in the event the maker failed to pay the note when due. A final decree for the plaintiff was entered in the Superior Court for Hampden County on December 17, 1928. Notice of appeal was filed in that court by the defendant on January 3, 1929. An order was given by the defendant on January 7, 1929, to the clerk of that court to print the record for perfecting the appeal. On April 8, 1929, the plaintiff filed in this court a motion that the appeal be dismissed ‘because the appeal from the final decree of the Superior Court was not entered in the Supreme Judicial Court forthwith as required by Statute and rules.’ In the absence of a charge to the contrary in the affidavit, it is assumed the necessary deposit to cover the expenses of printing the papers and preparation of copies was given the clerk with the order to print. Under G. L. c. 231, § 135 and c. 214, § 19, it is the duty of the clerk to make up and print the copies and papers relating to the appeal, and the duty of the appellant when the record is completed to ‘forwhwith’ enter the case in the Supreme Judicial Court. Cobb v. Rice, 128 Mass. 11, 12;Griffin v. Griffin, 222 Mass. 218, 220, 110 N. E. 296;Loonie v. Wilson, 233 Mass. 420, 424, 124 N. E. 272;Silverstein v. Daniel Russell Boiler Works, Inc., 254 Mass. 137, 140, 149 N. E. 705;Lanza v. Leveroni (Mass.) 165 N. E. 675. On the facts, the direction of the defendant to the clerk to print the record required to be prepared and transmitted to the full court was given ‘forthwith.’ It follows that the motion to dismiss the appeal must be denied, and it is so ordered.

The testimony is not reported. Upon the defendant's request filed December 20, 1928, for a report of material facts, the judge found the facts to be as stated in his findings, rulings and order for a final decree filed December 7, 1928. Berman v. Coakley, 257 Mass. 159, 161, 153 N. E. 463. It follows that the only question presented on this aspect of the case is whether the specific facts stated are necessarily inconsistent with the general conclusion reached. Cleveland v. Hampden Savings Bank, 182 Mass. 110, 111, 65 N. E. 27.

The report of material facts is in great detail and completeness. It appears therein that on August 10, 1920, Ford's Wawbeek Springs, Inc., gave its promissory note to the order of the Atlas Trust Company. Before delivery it was indorsed in blank by eight persons who were investors in the maker corporation. Of these persons Charles J. Downey is the defendant and George G. Tait is the plaintiff. When due, on November 10, 1920, the note was not paid; it was dishonored, duly protested, and notice of the dishonor given to the indorsers. Of the indorsers, Sievers, Downey and Tait were and are still men of large means.

At the suggestion of the defendant a note was given him in the following form: ‘$6200. December 23, 1920. Three months after date we promise to pay to the order of Charles J. Downey Sixty-two hundred and no/100 dollars. Payable at Atlas Trust Co., Springfield, Mass. Value Received. (signed) Ford's Wawbeek Springs, Inc., Wilbur C. Caldwell Treas.’ Before delivery this note was indorsed by Wilbur C. Caldwell, Thomas J. Flanagan, George G. Tait, and D. H. Sievers, all of whom were investors in Ford's Wawbeek Springs, Inc. The defendant, in accordance with the arrangement under which the note was given, added his name by way of indorsement in blank after the delivery of the note, and negotiated it on December 23, 1920, to the Atlas Trust Company, which applied $6,000 of the proceeds of the note in payment of the earlier note of August 10, 1920, and retained the additional $200 of face value of the note by way of discount or interest.

Before this note was executed and delivered to Downey, at a meeting at which the four indorsers and Downey were present, the question arose whether Downey by this transaction would escape liability under his indorsement of the note of August 10, 1920. Downey assured the other indorsers that, notwithstanding the form of the new transaction, he would assume responsibility equally and jointly with them as though he had indorsed the new note, explaining that the form of the new transaction was one insisted on by the Atlas Trust Company, of which Downey was a vice-president. The trial judge specifically found ‘that Downey and the four endorsers before delivery of the new note of December 23, 1920 agreed among themselves at the time said note was given to share equally and jointly the liability of endorsers of said note.’ As a part of the same transaction, with intent to secure all the indorsers of the note of December 23, 1920, and also to secure Downey, Ford's Wawbeek Springs, Inc., gave Downey a chattel mortgage upon its assets, which Downey assigned to the Atlas Trust Company. Ford's Wawbeek Springs, Inc., was adjudicated a bankrupt on March 10, 1921, upon a petition filed February 24, 1921. The chattel mortgage, upon litigation in the course of the bankruptcy proceedings, was adjudicated to be valid as against the trustee in bankruptcy. The Atlas Trust Company, and through it the defendant, received the sum of $1,822.56 upon the sale of the assets covered by the mortgage; this sum the defendant still holds.

On March 23, 1921, when the note of December 23, 1920, became due, it was dishonored and duly protested, and notice of dishonor was duly given to the indorsers. At that time a new note was given the defendant Downey in the following form: ‘$6000. March 23, 1921. Sixty days after date we promise to pay to the order of Charles J. Downey Six thousand no/100 Dollars Payable at Atlas Trust Co. Springfield, Mass. Value Received. This note is Collateral to and not payment of a note for $6200, given by this company to this payee dated Dec. 23, 1920. (signed) Ford's Wawbeek Springs, Inc. R. D. Cram, Asst. Treas.’ The contention made by the defendant at the trial, that R. D. Cram, assistant treasurer, was without authority to execute the note of March 23 in behalf of the maker of it, is formally abandoned in his brief. Otherwise considered, his position was rightly disregarded. All indorsers, including Downey, became liable to the Atlas Trust Company because of their implied warranties. G. L. c. 107, § 89. No new consideration was received for this note other than forbearance to sue upon the earlier note until maturity of this note. Before delivery this note was indorsed by the same persons who indorsed the note of December 23, 1920, and their names appeared on the back of the note in the same order. The indorsers put their names on the note before delivery to Downey and entrusted the...