Atkins v. Brown

Pleading. Promissory note — construction of. Money paid — what will support. A promissory note of the .tenor,— “Portland, Aug. 29, 1863. One month after date, we promise to pay'to the order of E. Atkins & Co., four hundred and forty-four dollars. Value received. Augusta Shovel Co. A. D. Brown, Pres.” — will not sustain a count against A. D. Brown alone, describing it as ' his note or as the joint and several note of the Augusta Shovel Co. and A. D. Brown. The defendant originally owning three-fifths, after purchasing the remaining stock of the Augusta Shovel Co., gave to the plaintiffs a note of the following tenor, — “Portland, Aug. 29,1863. One month after date, we promise to pay to the order of B. Atkins & Co. four hundred and forty-four dollars. Value received. Augusta Shovel Co. A. D. Brown, Pres.,” — which being discounted at a bank, Brown paid one hundred dollars on it, and on .Dec. 18, 1863, wrote the plaintiffs requesting them to allow on the note a balance of account due him, for property of the Shovel Company, purchased of him by the plaintiffs, and “ to take up the note and we can arrange the balance when I see you. I have written the cashier that you will take care of the note.” Upon receipt of the letter, the plaintiffs took up the note, and the defendant,subsequently promised to pay them. Held, that the evidence sustained a count for money paid.

ON Report. Assumpsit, tlie declaration containing tbe following counts: 1. “For that said defendant, at Portland, on the 29th day of August', a. d. 1863, by his note of hand of that date, by him signed, for value received, promised the plaintiffs to pay them, or their' order, four hundred and forty-four dollars and twenty-nine cents, in one' month after date; yet though often requested, he has not paid the same. 2. “Also, for that said defendant, at Augusta, on the day of the date hereof, being indebted to the plaintiffs in the sum of three hundred and fifty dollars, for so much money "before that time, had and received by the defendant to the use of the plaintiffs, and for the same sum paid, laid out and expended by the plaintiffs, at the request and for the benefit of the defendant, then and there, in consideration thereof, promised the plaintiffs to pay them the same sum on demand; yet, though often requested, he has not paid it, but neglects and refuses to do so. 3. “Also, for that the defendant and the Augusta Shovel Company at Portland, on the 29th day of August, 1863, by their promissory note of that date, by them signed, for value received, jointly and severally promised the plaintiffs to pay them or their order, four hundred and forty-four dollars and twenty-nine cents, in one month after date ; yet though often requested, neither the defendant nor the Augusta Shovel Company has ever paid the same, but neglects and refuses so to do. The note declared on and produced as evidence to support the first and third counts, was of the following tenor: “$444.29. PORTLAND, Aug. 29* 1863. One month after date, we promise" to pay to the order of E. Atkins & Co. four hundred and forty-four dollars and twenty-nine cents. Value received. Augusta Shovel Co. A. D. BeowN, Pm.” It appeared that the note was given by the defendant to the plaintiffs, for the debt of the company, and discounted at Freeman’s Bank. Oct. 29, 1863, the defendant wrote the plaintiffs, “I will take care of note in a few days.” Dec. 1, 1863, he wrote to them, “I paid in at Freeman’s Bank on our note the day I was there.” Dec. 18,1863, he wrote them, “I paid $100 on the note, when at Augusta, to the cashier. Will you collect the balance of Baker & Co. (suppose you are one), and take up the note, and we can, arrange the balance when I see you. I have written the cashier you will take care of the note. Amount of note $444, — cash of A D. B., $100 = 1344 — $153 (you owe me) = $191 balance to pay.” There was a memorandum on the note as follows: “ Bal. paid by E. Atkins, Dec. 24, $350.47.” It appears that the plaintiffs paid tbe note the latter part of December or fore part of January, and that the defendant repeatedly promised to pay the balance paid by the plaintiffs after deducting the amount of shafting which Brown sold to the plaintiffs, and formerly belonging to the Shovel Company, amounting to $146.72. On the part of the defense it appeared that the Augusta Shovel Company was organized Oct. 18, 1860; that Brown was president, owning three-fifths of the stock; that as president he was chief manager, and was authorized to sign notes and negotiate its business ; and that the defendant, some time after 1862, bought in all the stock. ■ The case was withdrawn from the jury and reported to the full court, who were to render judgment for the plaintiffs or defendant, as the law required. applying the test laid down in Brad-lee -v. Boston Cflass Go., 16 Pick. 347, contended that the note was that- of the company and cited R. S. c. 1, Rule XXI, § 4; Andrews v. Estes, 11 Me. 267; Byer v. Burnham, 25 Me. 1; Rogers v. March, 83 Me. 106; Kidder v. Knox, 48 Me. 551.