Hamblen v. Ratigan

The creditors of A. and B. by a composition deed agreed to accept from A. and B. “ ten per cent, of the amounts due us and each of ns from said A. and said A. and B. in full settlement and discharge of our debts against them, said ten per cent, to be paid within thirty days.” The plaintiff, one of A.’s creditors who joined in the deed, held a note and account against him, which were then due. He also held another note, which would not become due until after the expiration of said thirty days, on which A.’s name appeared as indorser. Held, that this last note was not included in the composition deed.

CoNTBAOT upon a promissory note, dated February 2, 1874, signed by one Travers, and payable three months after date to the order of the defendant, who indorsed the same to the plaintiffs. Writ dated June 10, 1874. The case was submitted to the Superior Court, and after judgment for the defendant, to this court, on appeal, on an agreed statement of facts in substance as follows: Payment of the note was duly demanded of said Travers, the maker, who neglected to pay the same, and due notice of its nonpayment was given to the defendant. On February 24, 1874, before the said note became due, the plaintiffs joined with other creditors in the execution of a composition deed, of which the following is a copy: “ We, the undersigned, creditors of George D. Clement and Thomas Eatigan, both of Boston, in consideration of one dollar to each of us paid, do hereby agree to accept from said Clement and Eatigan a sum equal to ten per cent, of the amounts due us and each of us from said Eatigan, and said Clement and Eatigan, in full settlement and discharge of our debts against them as above, said ten per cent, to be paid within thirty days.” At the time of signing the composition deed the plaintiffs, in addition to the note now in suit, held another note for $100, signed by the defendant, which was then due and payable, and there was also due the plaintiffs the sum of $70 on open account for goods sold the defendant. In accordance with the terms of the agreement in the composition deed the plaintiffs received a dividend of $17, being ten per cent, of the amount due on the open account and on the note then due and payable, and no part of the note now in suit has ever been paid. If, on these facts, the plaintiffs were entitled to recover at all, judgment was to be entered for them for $100 and interest from May 2, 1874, or for ten per cent, of that amount, as the court should find that the note declared on was covered by the composition deed or not.