Davis v. Elwell

De Courcy, J. The note in suit was made by the Cape Ann Omnibus Company, payable to the order of the plaintiff Davis, [258] and indorsed by the directors of the corporation, Antoine A. Silva, William Costa, Percy G. Elwell and R. Chandler Davis. It was not paid by the corporation at maturity, and was taken up by the plaintiff at the Gloucester Safe Deposit and Trust Company, where it had been discounted. Davis brought this action against the defendant as prior indorser, and obtained a verdict. The main contention of the defendant at the trial was that when the note was made the four indorsers agreed that as among themselves they should bear an equal liability in case the note should not be paid by the corporation. The testimony was conflicting as to the making of such an agreement. The negotiable instruments act, R. L. c. 73, § 85 (now G. L. c. 107, § 91), provided “As respects one another indorsers are liable prima facie in the order in which they indorse; but evidence is admissible to show that as between or among themselves they have agreed otherwise.” As was said in Mulcare v. Welch, 160 Mass. 58, 61, “But nothing less than actual agreement between them will change the liability imposed by law in consequence of the several undertakings shown by the note itself.” See also Enterprise Brewing Co. v. Canning, 210 Mass. 285. The trial judge fully and correctly instructed the jury on this subject, even though he did not give the defendant’s second request in terms. Among other things he said: “the defendant . . . has got to satisfy you that there was a statement made that was assented to, either by his word or by his act, by this plaintiff, that that arrangement should be entered into and agreed that they should all be bound equally and that each should be obliged to pay one quarter part of the note if the note had to be paid.” And this instruction was repeated in substance more than once. The third request 'should have been given. If the agreement had been established, technically the plaintiff’s remedy would not be to recover on the note, but a- suit for contribution based upon the agreement. Shea v. Vahey, 215 Mass. 80. However, the error did not affect the substantial rights of the defendant; because the jury, as shown by the verdict, found that the alleged oral agreement was not made. The fourth request dealt with an alleged agreement and votes of the directors to retain the proceeds of said note for the purpose of paying the note at maturity, and the expenditure of the same [259] by the plaintiff as treasurer for other purposes, in violation of such vote and agreement. It appears by the corrected record that by the vote of the directors on December 15, 1920, the treasurer was directed to “deposit the proceeds thereof in the company’s account at said bank.” The money was so deposited, and was used to pay the current expenses of the corporation. On January 12, 1921, on the suggestion of the directors $500 of this money was deposited in a special account, — apparently to prevent an attachment by creditors; but on January 24 the directors voted that the treasurer should disburse this for “current expenses as they come due.” In short, the record fails to disclose an unauthorized expenditure of the proceeds of the note by the plaintiff, on which the defendant relies for an equitable defence. Even if the facts were as assumed in said fourth request, the liability of the plaintiff for an unauthorized expenditure of its money presumably would be to the corporation and not to a creditor or stockholder. Converse v. United Shoe Machinery Co. 185 Mass. 422. See Bartlett v. New York, New Haven & Hartford Railroad, 226 Mass. 467. There was no error in refusing to give the fourth request, nor in the ruling that the alleged unauthorized use of the proceeds of the note by the plaintiff would not constitute a defence for the defendant to the payment of the note. ' Exceptions overruled.