Ketchum v. Jauncey

Waite, J. There has been a forfeiture of the condition of the mortgage deed, by the neglect of Jauncey to pay the notes, endorsed by the plaintiff, when they became due, according to the terms of the condition, and the plaintiff is entitled to a decree of foreclosure, if he has been subjected to the payment of those notes, or any portion of them. The report of the committee is not very explicit, in relation to the endorsement and payment by Ketchum, Rogers & Bement. It is found, that the notes were endorsed by the plaintiff, at the request of Jauncey, and discounted for his use and accommodation; that, subsequent to the endorsement by the plaintiff, they were also endorsed by that firm, of which he was a member, and through which he was in the habit of transacting his individual similar business, and by which the notes were afterwards paid. If, by this, we are to understand, that the firm, in endors [127] ing and taking up these notes, acted merely as the plaintiff’s agent, we do not see why he is not entitled to a decree, for the payment of the full amount due upon the notes. But, if the firm stands in the situation of an ordinary endorsee, and, as such, has taken up the notes, and now holds them, then the plaintiff has been damnified, at least, to the extent of his share of the partnership funds, used in taking up the notes, and as prior endorser, is, probably, liable for the full amount of them. In an action at law, it is sometimes difficult to determine the precise amount of damages, to which a party may be entitled, by reason of a breach of contract, in not paying a debt, for which the plaintiff is liable, but has never paid. Lathrop v. Atwood, 21 Conn. R., 117. But such difficulty does not ordinarily arise in chancery, where the court has power so to frame its decree, as to do justice to ihe several parties, and protect their respective rights. It is further said, that the mortgage is void, against all the defendants except the mortgagor, as being too vague and indefinite; and the case of Shepard v. Shepard, is relied upon, in support of the claim. 6 Conn. R., 37. We think, however, there is a manifest distinction, between that case and the'present. Here the amount of the notes is limited to $7,000. The case, therefore, rather falls within the principles recognized in more modern cases. Crane v. Deming, 7 Conn. R., 387. Hubbard v. Savage, 8 Conn. R., 215. Merrills v. Swift, 18 Conn. R., 257. Lewis v. DeForest, 20 Conn. R., 427. The superior court is therefore advised, that the plaintiff is entitled to a decree in his favor. In this opinion the other judges concurred. Decree for plaintiff.