Plummer v. Emery

Morton, J. This is an action of contract to recover upon a guaranty relating to the sale and purchase of certain stock entered into between the plaintiff’s testatrix and the defendant. The case was submitted to the Superior Court upon agreed facts which contained the stipulation that, if the defendant was liable, judgment was to be entered for the plaintiff for $2,000. The presiding judge ordered judgment to be entered for the plaintiff in the sum agreed and reported the case to this court. If the defendant is liable the judgment is to be affirmed; otherwise judgment is to be entered for the defendant. We think that the judgment should be affirmed. The defend [186] ant contends that the guaranty was to the plaintiff’s testatrix personally and that it expired with her. If that is not so he further contends, if we understand him, that the guaranty should be construed as in force for a reasonable time only and that that also expired at her death. He relies for these contentions on Rotch v. French, 176 Mass. 1, where the opinion it should be noted was by a majority of the court. The guaranty runs, it is true, to Emma L. Phillbrook, the plaintiff’s testatrix, without mentioning her heirs, executors, administrators or assigns. But the guaranty is an absolute one “ against loss of principal on said purchase of said stock,” differing in that respect from the guaranty in Rotch v. French, supra, and there is no reason why it should not pass as a part of her estate to her executor. The fact that there are no words of succession in the guaranty does not prevent it from passing since the executor succeeds qua executor to the personal estate of his testator and the rights of action growing out of it. There is no ground for the defendant’s contention that the guaranty continued in force for a reasonable time only. By mutual agreement between the defendant and the plaintiff it was extended to January 31, 1903. The plaintiff’s testatrix died December 26, 1902., and on or about March 30, 1903, the plaintiff demanded of the defendant payment of $2,000, which he claimed to be due the estate under the guaranty. The agreed facts state that the stock mentioned in the agreement “ was not readily salable and had no value in the open market ” and that that condition of affairs continued to the date of the plaintiff’s writ. And it is also agreed “ that the plaintiff was not personally guilty of laches in making such demand or in the bringing of his' writ.” It is plain we think that the finding of the presiding judge in favor of the plaintiff was well warranted. Judgment affirmed.