Fuller v. O'Brien , 121 Mass. 422 ( 1877 )

Ames, J.

By the terms of the written agreement, it appears that whatever sum should become due to the principal defendant was payable in the negotiable promissory notes of the trustee. The dates and amounts of each of these notes were fixed by the terms of the contract, but it does not distinctly appear at what times they were respectively to become payable. The provision as to allowing interest in case the time should run beyond the first, of October, 1875, is an indication that the notes were not expected to be payable on demand. One of these notes was to be for $2000 and to bear date August 1st, and the last of the series was to be for $1000 and to be dated September 1st. That time had expired when this action was commenced, and the balance remaining to be paid to the defendant was the sum of $1810.57.

It does not appear that there has been any refusal on the part of the supposed trustee to deliver the notes that by the contract he was bound to give. Although the dates and amounts of these notes were specifically defined by the contract, the parties might modify them in those particulars as they should see fit; but creditors of the contractors could have no such right. The supposed trustee still had the right to pay by his promissory notes, and we see no ground for allowing a creditor of the contractors to interfere with this contract, and to compel the other party to it to pay in money instead of giving the note. Willard v. Butler, 14 Pick. 550. Hancock v. Colyer, 99 Mass. 187. Knight v. Bowley, 117 Mass. 551. It does not appear that, at the date of this process, any of the notes had become payable, or that there was any debt absolutely due to the principal defendant in money, and for that reason the alleged trustee is not chargeable. The other objections relied upon in his answer we have not found it necessary to consider. Trustee discharged.