Skillings v. Marcus , 159 Mass. 51 ( 1893 )

Allen, J.

The plaintiff’s oral evidence tended to show that he took the note by purchase, and the defendants’ oral evidence tended to show that he took it as collateral. So far as the oral evidence was concerned, it was clearly a question for the jury. The ruling, therefore, must have been on the ground that the written agreement showed conclusively that the plaintiff took the note by purchase. We are unable to see that it has this conclusive effect. The plaintiff paid to the defendants $675, and took from them Shepard’s note for $1,750. Upon this note Shepard was primarily responsible, and the defendants were indorsers and responsible secondarily. It was for the interest of the defendants that the money should be collected from Shepard. If the note should be paid by Shepard, the plaintiff would have in his hands $1,075 more than his payment to the defendants. Under this state of things the written agreement was executed. It may be assumed to have been so nearly contemporaneous with the transfer of the note as to be part of the transaction. Now we have to consider whether this agreement necessarily implies that the plaintiff took the note by purchase, so as to be absolute owner, rather than as collateral. The words near the beginning of the agreement, “ when the note is paid, I agree to convey to Alfred A. Marcus & Son,” etc., may naturally refer to a payment by Shepard, the maker, and do not necessarily imply a duty on the part of the indorsers to pay it in full. So the words at the end of the agreement, “ when note is paid, credit to be given of $1,075,” may reasonably be held to mean “ when note is paid by Shepard, credit to be given to Marcus & Son of $1,075.” Payment by Shepard is consistent with the words and meaning. Since the plaintiff held the note, if Shepard wished to pay it in full he would make the payment to the plaintiff. Moreover, there are no words showing that the defendants agree to purchase the land on the terms specified. The agreement is solely on the part of the plaintiff. The signature of the defendants does not bind them to make a purchase any more than if it were a bond for a deed to which the obligee should add his signature. The court cannot put words into the agreement which are not there, for the purpose of binding the defendants to make the purchase, unless it is certain from the context that such words were omitted by mistake. It might well be that the plaintiff intended merely to give to the defendants an option. There is nothing to show that the defendants had ever seen or heard of the land before, or that they had any intention of binding themselves to purchase it. In order to bind them, not only is their signature necessary, but also apt words are necessary to show the obligation into which they entered. But even if their signature could be construed so as to import a contract to make the purchase, certainly it can bind them to no more than to make such purchase under the condition expressed in the writing. That condition is, “ when the note is paid.” The defendants might be willing to agree to take a conveyance of the land provided the note should be paid by Shepard, but not willing to. do so if they would have to raise the money themselves to pay for it. The- note was not paid by Shepard. On the contrary, he went into insolvency, and the plaintiff received only fifteen per cent thereon. The defendants are not bound to raise money from their own means to pay $1,075 for the equity of redemption of the land. The plaintiff cannot compel the defendants to pa)r the note, in order to put himself in a position where he will be bound to. make the conveyance, and the defendants bound to accept it. In any view which can be taken of the written agreement, in the opinion of a majority of the court, it is not inconsistent with the defendants’ contention that the note was taken by the plaintiff as collateral.

If so taken as collateral, the plaintiff’s right to recover upon it is limited to the balance due to him upon his loan of $675 to them. Third National Bank v. Eastern Railroad, 122 Mass. 240.

The discharge of Shepard under the composition proceedings, though assented to by the plaintiff, does not cut off the plaintiff’s claim against the defendants as indorsers. Sts. 1884, c. 236, § 9; 1885, c. 353. Pub. Sts. c. 157, § 85.

Exceptions sustained.