Wilson v. Powers
| Decision Date | 23 November 1881 |
| Citation | 131 Mass. 539 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Job T. Wilson v. Patrick P. Powers & another |
Bristol. Contract upon a joint and several promissory note for $ 5000, dated February 2, 1874, payable to the plaintiff or order, "with interest at the rate of twelve per cent per annum, payable semiannually in advance," and signed by Philip S. Walsh as principal and by the defendants as sureties. The defence relied upon was that the defendants had been discharged from their liability as sureties by an instrument, dated July 5, 1877, and signed by the plaintiff the material part of which was as follows:
After the former decision, reported 130 Mass. 127, the case was tried in the Superior Court before Allen J. There was evidence tending to show that the instrument was under seal when delivered. The plaintiff contended that the instrument was delivered to Walsh as a proposal merely, and that it was not to take effect as a contract until assented to by the sureties. The jury returned a verdict for the plaintiff, and found specially that the instrument was not delivered as a completed agreement; and the defendants alleged exceptions to the admission of certain evidence, bearing upon this issue which appears in the opinion.
Exceptions overruled.
J. M. Morton, for the defendants.
H. A. Clark, for the plaintiff.
OPINION
At the trial, the defendants relied upon a certain instrument as discharging them from their obligation as sureties, by which Wilson, the promisee of the note, as it was contended, agreed to extend the time of payment of the note to the principal defendant without the assent of the sureties. It was contended by the plaintiff, that the instrument signed by Wilson was delivered by him as a proposition merely, and upon the agreement that it should become binding only upon the assent of the sureties thereto. The manual delivery of an instrument may always be proved to have been on a condition which has not been fulfilled, in order to avoid its effect. This is not to show any modification or alteration of the written agreement, but that it never became operative, and that its obligation never commenced. Whitaker v Salisbury, ...
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...not to have become effective because of the nonperformance of some condition precedent orally attached to its taking effect. Wilson v. Powers, 131 Mass. 539;Marr v. Washburn & Moen Manuf. Co., 167 Mass. 35, 38, 44 N.E. 1062;Elastic Tip Co. v. Graham, 185 Mass. 597, 600, 601, 71 N.E. 117;Hil......
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