Morrison v. Lamson

Barker, J. 1. The natural meaning of a direction to pay from a designated fund is to pay only from that fund. See Josselyn v. Lacier, 10 Mod. 294, 317; Jenny v. herle, 1 Stra. 591; Macleed v. Snee, 2 Stra. 762; Wheeler v. Souther, 4 Cush. 606 ; Proctor v. Hartigan, 139 Mass. 554. The added direction to “ charge the same to our account ” is as consistent with this meaning as with that for which the plaintiffs contend. In either case the sum paid is to be charged to the drawers’ account. In the present order the words “ from equities on hosiery consigned to you ” seem to us to be a condition that the payment is to be made only out of that fund, and not merely a statement of the origin of the debt between the drawer and the drawee, or a mere reference to a fund designated for the drawee’s reimbursement. See Haussoulier v. Hartsinck, 7 T. R. 733; Wells v. Brigham, 6 Cush. 6. The direction is not to charge the payment to a particular fund, as was the direction in the drafts dealt with in Whitney v. Eliot National Bank, 137 Mass. 351, but [541] to make the payment from a fund, and to charge it to the drawer. In Newhall v. Clark, 3 Cush. 376, Cook v. Wolfendale, 105 Mass. 401, Somers v. Thayer, 115 Mass. 163, Russell v. Barry, 115 Mass. 300, the time of payment of the orders was conditional, and it was upon the ground that the time of payment had not arrived that the defendant in Proctor v. Hartigan, 143 Mass. 462, finally prevailed. Giving this construction to the language of the order, the facts alleged in the answer were all material to show the amount due, and whether time for payment had arrived. The acceptance was an agreement to comply with the request expressed in the order, and that request was to be construed in the light of the circumstances existing when the order was given, and the later transactions were material in determining the amount of the fund. 2. It follows from the construction which we give to the order that it was an assignment of the rights of the hosiery company against the defendants growing out of the consignment mentioned in the order, and that by the acceptance the defendants became bound to pay to the plaintiffs so much of the sum of $612.84 as, but for the order, would have been payable to the drawer when the “ equities ” should be adjusted. The fund designated was the sum to become due to the drawer by reason of the consignments of hosiery made by the drawer to the defendants when the transaction should be closed, and it was an “ equity.” It was not limited by the net proceeds of sales improperly made, but included whatever sum should have been realized from sales made in accordance with the terms of the consignment. The evidence justified the finding for the plaintiffs. There was no exception to the introduction of evidence. The declaration set out the order by copy, and it would be too strict to hold that it did not authorize the finding. Plaintiffs’ demurrer overruled; defendants’ exceptions overruled.