Marston v. Bigelow

Contract — Promissory Note — Father’s Promise for Son’s Benefit—Consideration— Equitable Defence — Evidence — Notice by Mail — Presumption of Delivery — Interest. A son cannot recover, on the ground of relationship, upon a promise made for his benefit to his father, if the consideration for such promise moves wholly from the father. In an action upon a promissory note against the maker, the answer set up as a defence, and evidence was offered at the trial, that, before the note matured, the maker’s father conveyed land to the payee, a part of the price being indorsed upon the note in part payment thereof, and that in consideration thereof the payee agreed with the father never to molest or trouble the son for the balance due upon the note. The presiding judge excluded the evidence, whereupon the defendant moved to have his father summoned in as a party to render that defence competent, which motion was overruled. Held, that this defence would not avail the defendant, and that the evidence was rightly rejected, and the motion properly overruled. The note contained a promise to pay “ five years from date at the rate of six, 6-J, one half per cent per annum, payable semiannually,” and the jury were instructed that, upon the question whether interest should be allowed from the date of the note, they might take into consideration' the subsequent acts of the parties, and that, if they were thereby satisfied that the parties interpreted the note as one bearing interest from its date and acted upon that interpretation, they would be warranted in reckoning interest from its date. Held, that the omission of the words “with interest” was a mere clerical error, and that the instructions were sufficiently favorable to the defendant. The payee signed a notice required by the terms of the note to he given to the maker and caused it to be deposited, postage paid, in the post-office, directed to an office of the maker, from which he had removed a year and a half previously to another office, where, being a lawyer in active practice, he daily received letters by mail. The envelope containing the notice bore a request that, if not delivered in five days, it should be returned to the payee, but it was not so returned. There was no evidence that the maker’s new address was known to the postal authorities, except as that fact might be presumed from the usual course of the postal service. The maker requested the judge to rule that the presumption of the delivery of a letter, sent postpaid through the mail to the person to whom it is addressed, does not apply to a case where the letter is directed to a place from which the person to whom it is addressed has removed. Held, that this request was properly refused, and the question of the receipt by the maker of the notice was properly left to the jury.

Contract, by the administratrix of the estate of Smith Curtis, foi a balance due upon the following promissory note: “ Boston, April 1, 1876. For value received, I promise to pay to Smith Curtis, or order, the sum of ten thousand dollars, five years from date, at the rate of six, 6|, one half per cent per annum, payable semiannually. Six months’ notice in writing to be given to promisor or his representative if payment at the end of said term will be required, or before enforcing payment if said note is allowed to run over the term above limited, this note being given in full satisfaction and payment of all demands. “ George B. Bigelow.” On the back of the note, among other indorsements of payments of interest signed by the intestate, were the following : “ January 29, 1879, received on account of the within nine hundred seventeen yg-g dollars, interest in full to date, also seventeen hundred and seventy dollars of principal.” “ January 22, 1880, received on account of interest on the within, twenty dollars.” The answer was as follows: “ And now comes said defendant and says that he made a writing to the same effect as that declared upon, but he denies that there ever has been any demand for payment as therein required; and he further says, that after making the said writing, to wit, the twenty-ninth day of January, in the year 1879, the father of this defendant paid to Smith Curtis, the plaintiff’s intestate, the sum of twenty-six hundred and eighty-seven dollars and six cents, being all the interest accrued on the sum of ten thousand dollars, the amount specified in said writing to that date, and also the sum of seventeen hundred and seventy dollars on account of said principal sum, upon the consideration and distinct agreement of said Curtis that he would not thereafter sue or molest this defendant in any way by reason of the writing declared, or attempt to enforce said claim, but this defendant might make any further payments at any time thereafter that he might wish; and he prays judgment if the plaintiff ought to have or maintain this action against him.” Writ dated July 17, 1886. Trial in the Superior Court, before Hammond, J., who, after a verdict for the plaintiff, reported the case for the determination of this court, as follows. The plaintiff contended that, in March, 1883, a notice was given by Curtis to the defendant, which notice was as follows: “ Mr. Geo. B. Bigelow, —In your note dated April 1,1878, for ten thousand dollars, given to Smith Curtis, I give you notice I require payment of said note according to terms. Yours truly, Smith Curtis.” She offered evidence that one Dexter, on March 10, 1883, wrote the above notice at the request of Curtis, who then signed it; that Dexter put it into an envelope addressed to the defendant at the Old State House in Boston, and placed the same, postage paid, in the United States mail; and that on the envelope was a request that the letter, if not delivered in five days, should be returned to Dexter, and that it was not returned. The plaintiff introduced other evidence tending to show that at a trial of another action the defendant testified that he had no recollection of having received the notice, but that it was possible he might have done so. There was evidence that the defendant, a year and a half before March 10, 1883, removed from the Old State House to another building on Washington Street in Boston, where he remained until after March 10,1883; but there was no evidence that the defendant’s new address was known to the postal authorities, unless that fact can be presumed from the usual course of postal service in the city of Boston. The defendant testified that he had no recollection that he made any request that his letters should be forwarded to his new address, or that they were so forwarded; that he had no reason to believe that his letters were regularly or usually forwarded from the old to the new address, but that at that time he was, and for years had been, a lawyer in active practice, and daily received letters at his office by mail; and that he saw Curtis a number of times after March 10, 1883, and before his death, and no mention was made of the demand. The defendant offered to prove, by competent evidence, that on January 29, 1879, his father, Samuel Bigelow, conveyed a piece of real estate to Curtis for the sum of fifteen thousand dollars, receiving forty-five hundred dollars in cash and a portion of the balance in an indorsement upon the note in question; that Curtis agreed with Samuel Bigelow, in consideration of this conveyance, never to molest or trouble the defendant for the balance due upon the note ; and that the interest to January 29, 1879, and seventeen hundred and seventy dollars of the principal of the note, were then paid by this conveyance and indorsed upon the note. The plaintiff admitted that these sums should be allowed upon the note, but objected to the introduction of the evidence, on the ground that the agreement with Samuel Bigelow was not a bar to this action. The defendant contended that this defence was open to him under the St. of 1883, c. 223, if not before that statute, and asked the judge so to rule; but as Samuel Bigelow was neither a party to the note nor to this action, the judge ruled that, notwithstanding the St. of 1883, the defence was not open to the defendant, and excluded this evidence offered to support it; and the defendant duly excepted. The defendant then moved that Samuel Bigelow be summoned in as a party to this suit, so that the defence would become competent ; but the judge ruled, as matter of law, that Samuel Bigelow could not be summoned into court for that purpose, and overruled the motion. Upon the question whether the defendant received the notice of March, 1883, the defendant asked the judge to rule: “ 1. That there was no evidence of the delivery of this notice of March 10, 1883, to the defendant. “ 2. That the presumption of the delivery of a letter sent postpaid through the mails to the person to whom it is addressed does not apply to a case where the letter is directed to a place from which the person to whom it is addressed has removed.” The judge declined to give either of these instructions, and instructed the jury that there was a presumption that a letter sent postpaid through the mails is delivered at the place to which it is addressed; and that if the person to whom it is addressed has removed from that place and has informed the postal authorities of .the place to which he has removed, or if the authorities otherwise know the new address, it is a presumption, in the absence of other evidence, that the letter is delivered to him at the new address; but that this was simply a presumption, and the jury were to consider upon the whole evidence whether the notice was received. The jury were further instructed to bring in a verdict for the plaintiff, if they found that the defendant received that notice; otherwise, for the defendant. The defendant contended that, as matter of law, the note did not bear interest from its date at the rate of six and a half per cent, and asked the judge so to rule, which he refused to do; but upon the question of the amount of the verdict, if for the plaintiff, he instructed the jury, that, upon the question whether interest should be allowed from the date of the note, they might take into consideration the subsequent acts of the parties, and if they were satisfied from the subsequent dealings of the parties with reference to the note that the parties interpreted the note as one bearing interest from its date and acted upon that interpretation, the jury would be warranted in reckoning interest from its date. The defendant excepted. The jury returned a verdict for the plaintiff for the balance due on the note, with interest from its date, upon which judgment was to be entered if the rulings and refusals to rule were correct. The case was submitted on briefs to all the judges.