Fowler v. Perley , 96 Mass. 18 ( 1867 )

Gray, J.

By the indenture declared upon, the defendant and other creditors of the plaintiff covenanted and agreed with him as follows: “On the receipt or tender to us of twenty per cent, of our respective claims, and reckoned on the original amounts without interest or costs, within sixty days from the date hereof, we will give to said Fowler a full and complete discharge of our respective claims with the vouchers thereof, which shall be in full settlement and satisfaction.” The defendant wrote opposite his signature the amount of $1797.04. But the amounts set against the different signatures are in no way mentioned or referred to in the body of the indenture. The creditors who executed it did not covenant with the plaintiff that they then held or controlled, or would obtain or control, claims against him to any particular amount, but only that they would discharge their respective claims upon receipt or tender of twenty per cent, thereof. The evidence offered by the plaintiff at the trial showed that the defendant did not in fact own, at the time of signing the agreement, claims to the amount set against bis name, and that all the claims which he then actually held were afterwards discharged according to the agreement. As these facts are conclusive against the right of the plaintiff to maintain this action, it is unnecessary to consider the other questions argued at the bar. Exceptions nverruled.