Atkins v. Brown

Barrows, J. The plaintiffs cannot recover on either of the counts upon the note. -In the first count it is described as the individual note of the defendant; in the third, as the joint and several nóte' of the Augusta Shovel Co. and the defendant. If it could be construed as a note upon which the defendant was originally liable at all, he must have been liable upon it only jointly with the Augusta Shovel Co. The note cannot be said to be correctly described in either of these counts, and therefore will not support either of them. If it had been correctly described in a count setting it forth as'the joint note of the Augusta Shovel Co. and the defendant, perhaps it might have been said that the non-joinder of the Shovel Co. could only be pleaded in abatement, and the only question under, the general issue would be whether the defendant had made him [93] self personally liable as a joint promisor by his signature. But to make tlie note admissible under either of those counts, it should have been correctly described according to its tenor or its legal import. Had it been described as the joint note of the Augusta Shovel Co. and the defendant, the case of Draper v. Mass. Steam Heating Co., 5 Allen, 338, is an authority which it would be difficult for the plaintiffs to overcome, although we might think, as did the court in that case, that “it would have been better if the name of the principal had been inserted in the body of the contract, or if the word ‘ by ’ had preceded the defendant’s name in the signature.” It remains for us to examine the evidence. offered in support of the count for money paid. Whatever the true construction of the original note may be, it was competent for the defendant, if ho saw'' fit, to request the plaintiffs to take that note up at the bank upon his own individual account and responsibility and for his accommodation, and this he seems to have done. Upon the uncontradicted testimony in the case, we find that before the note was given, the defendant, originally the owner of three-fifths, had bought up all the remaining stock of the Augusta Shovel Co., so that if the note was to be paid at all, it made no difference to him pecuniarily whether he or the company paid it; that the company had sold the principal part of their property to the Portland Shovel Manufacturing Co., and the defendant had removed to Portland, from whence under these circumstances he wrote a few weeks after the note matured requesting, over his own signature, these plaintiffs to take up that note which had been discounted at the bank and to allow upon it the amount which he claims as due him for property of the A. S. Co. which the plaintiffs had purchased of him (amounting, as he states it in his letter, to $153, and as the plaintiffs state it in the testimony to $146.72), and promising in substance to pay the balance to the plaintiffs. It appears that upon the reception of this letter the plaintiffs did take up the note Dec. 24, 1863, paying at the bank $350.47, and that the defendant in subsequent conversations with one of the plaintiffs repeatedly promised to pay the sum [94] they had thus paid out at his request less the amount they had ¡received in goods of the Shovel Co. as above stated. We think this evidence sustains the count for money paid on this note, and that there should be Judgment for plaintiffs for $W3.75, and interest from Dee. 1863. AppletoN C. J.; CuttiNG, Kent, Danpoeth, and Tapley, JJ., concurred.