Ames v. Brooks , 143 Mass. 344 ( 1887 )

W. Allen, J.

By the agreement, to which the defendant Brooks was not a party, certain securities were to be placed in his hands for collection; if $5000 with interest should be paid by the defendant Clark to the plaintiffs on or before a certain day, the plaintiffs should assign to Clark all their right and interest in the securities, and Brooks should hold the securities for Clark, and all sums collected on them should belong to him; if Clark should not pay $5000 to the plaintiffs on or before the day named, Brooks should apply the sums collected on the securities to the payment of the amount due upon certain notes held by the plaintiffs, on which Clark’s name appeared as an indorser, and should account to Clark for the surplus. The plaintiffs also covenanted that, if the $5000 was paid to them on or before the day named, they would not sue Clark upon the notes.

The intention of the parties, as expressed in the agreement, is plain. Tipie was of the essence of the contract. The trust upon which the securities were to be held was made to depend upon the fact of the payment or non-payment of the money within the time fixed. If it was paid as provided, they were to be held for Clark; if not, they were to be held to pay the notes to the plaintiffs; there was no other trust for the plaintiffs. The payment of the money as provided was the condition upon which the trust for Clark (except as to the surplus after the full payment of the notes) .was to arise, a.nd upon which the covenant not to sue was to become operative. Parol evidence is not competent to vary this plainly expressed intention of the parties.

The plaintiffs, by not demanding payment of Clark or bringing suit against him upon the notes, did not lose their right to have the moneys which were collected upon the securities applied in payment of the notes. They had a right to wait until the trustee had received moneys which he could apply on the notes. The facts offered to be proved, that they knew of the progress of the collections upon the securities, and that Clark and the makers of the notes were insolvent, and that the plaintiffs expected that payment would be made from the moneys received from the securities, do not preclude them from enforcing their rights against the trustee.

Exceptions overruled. Decree affirmed.