Willard v. Davis

• Decision Date: 19 March 1903
• Docket Number: 1,706.
• Citation: 122 F. 363
• Parties: WILLARD v. DAVIS et al.
• Court: U.S. District Court — District of Massachusetts

122 F. 363

WILLARD v. DAVIS et al.

No. 1,706.

United States Circuit Court, D. Massachusetts.

March 19, 1903

W. P Sheffield, for complainant.

Thomas N. Perkins, for defendants.

PUTNAM Circuit Judge.

The complainant has a suit at common law in this court against the respondent, as executor of the will of Thomas H. Perkins on an account of which the following is a copy:

Estate of Thomas H. Perkins, Deceased, To E. W. Willard, Dr 1888. Jan. 1. Debt of C. D. Head & T. H. Perkins assumed by Thomas H. Perkins ............................. $21,764 70 1891. June 3. Received on account ................. $7,249 50 1892. June 3. Received on account .................... 600 00 1893. Feb. 17. Received on account .................. 4,447 43 1901. June 4. Received from policy of insurance .... 1,741 93 -------- 13,998 86 ---------- $ 7,765 84 1888. Jan. 1. Interest received ................... $1,193 10 1889. Jan. 12. Interest received .................... 1,088 23 1890. Jan. 18. Interest received .................... 1,088 23 1891. Jan. 1. Interest received .................... 1,088 23 1892. Jan. 1. Interest received ...................... 878 78 1893. Jan. " Interest received ...................... 861 78 ---------- $6,198 35 1894. Jan. 1. Interest unpaid ..................... $ 475 38 1895. Jan. 1. Interest unpaid ........................ 499 15 1896. Jan. Interest unpaid ........................ 524 12 1897. Jan. Interest unpaid ........................ 553 22 1898. Jan. Interest unpaid ........................ 577 98 1899. Jan. Interest unpaid ........................ 606 88 1900. Jan. Interest unpaid ........................ 637 22 1901. Jan. Interest unpaid ........................ 669 08 1902. Jan. Interest unpaid ........................ 541 79 --------- 5,084 82 ---------- Due January 1, 1902 ....................................... $12,850 66 The indebtedness was originally that of the partnership of Head & Perkins, in which Thomas H. Perkins was a copartner, but by an arrangement with the creditor the debt had been assumed by Perkins alone. The defendant set up, as one of the defenses in the suit at law, a release, of which the following is a copy:

'This indenture made this twenty-eighth day of December, A.D. 1887, between Charles D. Head and Thomas H. Perkins, brokers and partners under the firm of C. D. Head & T. H. Perkins, of the first part, hereinafter called the first party, W. G. Weld, party of the second part, hereinafter called the second party, and the persons, creditors of said C. D. Head & T. H. Perkins, who shall execute these presents, of the third part, hereinafter called the third parties.

'Witnesseth. That the first party, in consideration of one dollar paid by the second party, the receipt whereof is hereby acknowledged, hereby sell, assign, transfer and convey to the said second party all and singular the assets and property of every description of the said firm of C. D. Head & T. H. Perkins, and each of the members of said firm, except the seat in the brokers' board of said C. D. Head.

'To have and to hold the same to the second party, his executors and administrators and assigns, in trust nevertheless to sell and convert the same into money in such manner and at such time, as he shall deem most advantageous, and the net proceeds thereof, to divide among the third parties, ratably in the proportion of their respective claims against the first party, without preference or priority.

'Any surplus remaining after the payment of said debts in full to be divided among the parties of the first part. And the first party hereby appoints the second party their attorney irrevocable, with full power in their names to do all and every act, make and execute all deeds and instruments of every nature, which he may deem proper to enable him to dispose of and realize the assigned premises.

'And the second party accepts the assignment and trust herein and covenants faithfully to discharge the same.

'And the third parties hereby accept the foregoing conveyance and assignments in full satisfaction of their respective debts and demands against the first party, and in consideration thereof hereby release and discharge the said Charles D. Head & Thomas H. Perkins from all debts and demands which they and each of them have against them or either of them.

'In witness whereof the parties have hereto set their hands and seals the date first above written.

Charles D. Head. 'Thomas H. Perkins. 'Wm. G. Weld. 'E. W. Willard. 'B. P. Cheney.'

Before the trial of the suit at common law, the complainant brought this bill, praying that the release be reformed to express the 'true intent and meaning of the parties thereto,' as stated in the bill, and that the defendant in the suit at law be enjoined from setting up the release as a defense thereto. The pith of the allegations of the bill is that although the complainant, Willard, together with William G. Weld and B. P. Cheney, executed the foregoing release, it was upon an agreement that Perkins should give Willard an obligation providing, in some manner not clearly set out in the bill, for the ultimate payment of so much of Willard's debt as might not be satisfied out of the assets assigned in accordance with the release. The bill makes certain exhibits (H, I, and J) parts of it, in such way that they are not to be considered merely as evidence, but as qualifying and limiting the complainant's formal allegations. Those exhibits are a letter from Perkins to Willard of August 22, 1887, which was, of course, several months before the date on which the release was executed, namely, December 28, 1887, and is altogether too indefinite to need any further attention. Exhibit J is a letter from Willard to perkins, dated January 2, 1888, in reply to Exhibit I, which was a letter from Perkins to Willard of January 1, 1888, to be further referred to. The letter of January 2d was also absolutely indefinite, but it is noticeable because, although it returned...