Avery v. Bushnell , 123 Mass. 349 ( 1877 )

Colt, J.

The mortgage of personal property under which the plaintiff claims title, with the note secured thereby, and the contract therein referred to, between the parties to the mortgage, were executed at the same time and are to be construed together as constituting one transaction. So construed, we have no question that they created a debt to the plaintiff, secured by the mortgage, for the payment of which he is entitled to the possession of the property therein described.

It appears that there was a sale of machinery for a price agreed, and a delivery of .the same to the purchasers, who gave an agreement for the payment of the price, in the form of a note secured by a mortgage back on the same property. The note refers to the contract, which is also made part of it. But the contract is simply an agreement as to the method in which the debt may be paid other than in cash, namely, by certain allowances to the promisors for work which might be done for the promisees upon orders furnished by them for the manufacture of certain patented machines. But there is no agreement that the latter shall furnish orders for machines, the demand for which must have been limited at least, and would entirely fail with the life of the patent. There was a possibility that those allowances would not be sufficient to pay the debt. And the right to anticipate payment in cash was expressly reserved. It is clear that the mortgagors, when they made the arrangement, took the risk of not being able to pay the whole, in the method which the mortgagees agreed to accept, and, failing in that, the balance, in the absence of anything in the agreement fixing -the time, becomes due, if not on demand, at least after lapse of a reasonable time.

Judgment for the plaintiff.