Inhabitants of Northborough v. Wood , 142 Mass. 551 ( 1886 )

Holmes, J.

The defendants received the money for the note in suit. Francis Brigham received nothing, either from the defendants or from the plaintiff, except that he held a note of the defendants “ as an offset or protection for his liability.” There can be no pretence that the defendants were sureties of Brigham. Harris v. Brooks, 21 Pick. 195. But if we granted that they were sureties, and that sureties might be discharged on some principle of estoppel more readily than a principal debtor, Carpenter v. King, 9 Met. 511, Bragg v. Danielson, 141 Mass. 195, Harris v. Brooks, ubi supra, the evidence offered did not go far enough to make out such a case. It was merely that one of the defendants had paid one half of the note held by Francis Brigham for his protection, and that the plaintiff’s treasurer had told the defendants that the note in suit was paid. There was no offer to connect the two facts. It does not even appear that the defendant did not pay before the statement was made.

Brigham having died, two of his sons, one of whom was his executor, gave the plaintiff their note for $500, and took from the town treasurer a certificate that it was “ given as a guaranty or indemnity ” to the town for the note in suit, which last named note has been left with James T. Joslin,” (the executor’s attorney,) “ for collection,” with a stipulation that the two sons were to indemnify the town against the expenses of collection. Under the circumstances, this plainly imported that the old note was to be put in suit against the defendants, and that the note signed by Brigham’s sons was only given as security. And the bargain having been reduced to writing when it was made, the treasurer’s certificate could not be overridden by his testimony that the note in suit was paid by the executor, and surrendered to him, it being plain, and having been assumed in argument, that the testimony was simply a version of this same transaction.

In view of the last-mentioned fact, it is improbable that the testimony was intended to qualify or contradict the certificate, or that it really meant anything more than that the executor of Francis Brigham, by reason of the original and collateral notes, was the person practically most interested in the present suit. At all events, we see no ground for the suggestion that the executor of Brigham is the real plaintiff in a legal sense, or for doubting that the town remained the equitable, as well as the legal, owner of the note declared on. This being so, (even if the necessary parties were before the court,) the equities between the executor and the defendants cannot be considered in this case.

Exceptions overruled.