Fiske v. Stevens , 21 Me. 457 ( 1842 )

The opinion of the Court was drawn up by

Whitman C. J.

— The defendant contends that the verdict should not have been returned for the plaintiff, because he was one of the assignees of the effects of one Hammond, the acceptor of the draft declared upon, and has not yet accounted for the proceeds of those effects ; so that it does not appear, but that he has realized enough to pay the draft.

The Judge at the trial ruled, and we think very properly, that, if there was any thing in the plaintiff’s hands, which should go, either wholly or partially to the discharge of this draft, it was incumbent on the defendant to produce the evidence of it. This, it would seem, might easily have been done by calling on the other assignee to testify to the amount of assets received, and of the disposition of them ; and thereby, to have shown whether the plaintiff had availed himself of any thing towards the draft or not..

It is next objected that as the plaintiff was assignee of said effects, and executed said agreement, which contained a release of Hammond from all his liabilities, he thereby discharged the defendant from his liability on the draft, he being merely an accommodation drawer for the benefit of Hammond, while the plaintiff was an accommodation payee who had indorsed the bill for the like purpose.

It appears that the plaintiff executed the assignment, not absolutely as a creditor, as it respects this draft. He inserted the claim in the assignment as being for the benefit of whom it might concern ; and it appears further, that it was put into the assignment by concert between the plaintiff and defendant, with a view obviously, that whatever of dividend might be realized on account of it, should be applied in diminution of the amount ¡ultimately payable by the person liable in the last resort.

The salvo in the plaintiff’s subscription, especially if it be taken in connection with the defendant’s express wishes indicated in the testimony of Hammond, and communicated to the plaintiff, may well be considered as to the same effect, as it respects the liability of the defendant, as the one described in Gloucester Bank v. Worcester, 10 Pick. 528. The Court in that case say, “ we think that it is very clear, from the assignment or indenture itself, independently of the parol evidence, that the plaintiffs did not intend to discharge the defendant from his liability as indorser, and that the discharge contained therein, of the maker by the plaintiffs, was by the approbation of the defendant.”

Whenever the - intent of the parties can be ascertained by an inspection of an instrument, it should prevail over phraseology of a seemingly different import. From an inspection of the assignment in evidence, no one could fail to understand, that it was no part of the intention of the plaintiff’s subscription to it, to discharge any party to the bill in question, who might ultimately be liable to him thereon. This ground of defence, therefore we think, was not sustained.

The last objection urged by the defendant is, that at any rate, he was but in the condition of a surety with the plaintiff, and that, at most, the plaintiff can only recover of him the one half of the amount he may have been compelled to pay to take up the draft.

The fact necessary to sustain this ground of defence was negatived by the jury, which must be regarded as taking away the foundation, upon which alone, the position contended for, could be maintained.

On the whole, we think that the verdict must remain undisturbed, and judgment must be entered thereon.