Lord v. Bigelow

Ames, J. It has been found, as a matter of fact, that the promissory notes given to the plaintiff were not received by him as a satisfaction of the judgment. The judgment was to be released, if those notes should be paid at maturity; and, as they have not been paid, the judgment, primá facie, remains in force. [189] It was a case, therefore, not of collateral security, but of candi tional payment. If the notes remained in his hands or under his control at their maturity, he would have the same right upon their non-payment to return them, as he would if, instead of the notes, he had taken a check which there were no funds to meet, or had taken the bills of a broken bank. Small v. Franklin Mining Co. 99 Mass. 277. He had not so conducted that he could be said to have sold collateral security within the meaning of the Gen. Sts. o. 161, § 64. In the case of Fletcher v. Dickinson, 7 Allen, 23, which is cited for the defendant, a party holding certain notes expressly as collateral security assumed to sell them for less than their value, without the knowledge of the pledgor, and knowing that the purchaser intended to cancel them — a case which differs widely from the one before us. ■ The plaintiff, under the terms of the agreement, had a right, or more properly it was his duty, to attempt to collect the notes. An unsuccessful attempt to do so, made in good faith and in a proper manner, ought not to operate to his prejudice. He had a right to have them discounted at a bank, with the help of his own credit, and if they were not paid, and nothing was in fact received upon them, and they were returned upon his hands and taken up by him, he would be at liberty to resort to his original cause of action. Alcock v. Hopkins, 6 Cush. 484. Both of the notes are still in his possession, or under his control. The fact that one of them was sued for his benefit in the name of a friend, and reduced to a judgment, does not vary the case. The judgment not having produced satisfaction in fact, the plaintiff may resort to his original remedy. Drake v. Mitchell, 3 East, 251. The tender made by the plaintiff in court was as effectual as if the notes had never been out of his hands. The other point is equally clear. It was competent for the plaintiff to contradict the testimony of George B. Bigelow by proof of what he had said or done at some other time. It is true that the declaration alleged to be in conflict with his testimony in the present case was made by his attorney at the trial of another suit, in which the witness was plaintiff, and the present plaintiff was defendant. The declaration was made by his attorney, in the presence of the witness, and as a statement of what the witness would then testify to. A written mo [190] tian on his behalf, containing the same allegations in substance as a ground for amendment, had been previously filed in the same case. We think that the declaration so made was not a mere formal or technical statement by an attorney as to a cause of action, but an assertion of a matter of fact, made by his immediate representative and agent within the course and scope of such agency, for his benefit, in his presence, with his concurrence, and therefore binding upon him. Gordon v. Parmelee, 2 Allen, 212. Bliss v. Nichols, 12 Allen, 443. Bogle v. Chase, 117 Mass. 273. Brown v. Jewett, 120 Mass. 215. This conclusion rests upon the ground, not that he heard it and did not repudiate it, but that under the circumstances it was his statement. Exceptions overruled.