Proctor v. Whitcomb

C. Allen, J. There was no evidence of any agreement or understanding, to which the defendant was a party, which would limit the authority of the Eliot Bank to dispose of the note in suit, with the principal debt for which it was held as security. The only agreement with the defendant was that the note should be used at the Eliot Bank, and nowhere else. This means, that it was to be used there by Whitcomb and Thayer. If we look through the whole account given by the defendant and her son, of what took place between them at the time the note in suit was given, it is plain that the agreement between them did not, by its reasonable and natural construction, extend so far as to imply that the bank itself was to be bound not to dispose of its claim against Whitcomb and Thayer, and of the security with the claim. The stipulation of the defendant, as testified to by herself and by her son, was limited to the use which should be made of the note by himself or by his firm. [309] The defendant contends that the understanding between the bank and Whitcomb and Thayer was, that the bank should not dispose of this note; but this does not clearly appear, and if it did, it was an understanding to which it is not shown that she was a party. The circumstance that the plaintiff took the note with an intention to use it in a manner not allowed by law, does not preclude him from using it in a lawful manner, for the purpose of collecting thereon an amount equal to the debt for which it was held by the bank as security. Pemberton National Bank v. Porter, 125 Mass. 333. Atlas National Bank v. Savery, 127 Mass. 75. Proctor v. Whitcomb, 134 Mass. 428. The note representing the debt to the bank was dated January 24,1877, and was payable on demand, with interest; but, as against the defendant, the interest should only be computed from February 10, 1877, the date when the note was actually given; it not being shown that any interest on the debt accrued before that date. The verdict will therefore be amended accordingly. Judgment on the verdict as amended.