Clark v. Rogers

Mellen C. J.

By the report it appears that Clark and Haines in May, 1817, purchased certain real estate of Purinlon, and gave their joint notes for the purchase money, and a mortgage of the same estate as collateral security for the payment.

It was contended by the counsel for the plaintiff that the re-’ ceipt or certificate bearing date November 11, 1817, and signed by Haines, in one place and by Clark, Rogers, and Eaton inanother place, shews an assignment of the monies due on the notes therein described to Haines, or air appropriation of those sums for the purpose of paying the debt to Purinlon, so soon as Haines should collect the same; — and that as Rogers was conusant of this assignment or appropriation, and by his signature, assenting to it; it was not competent for Clark to receive the monies due on those notes and give a valid discharge to Rogers as he attempted to do by his receipt of May 10, 1821.

The counsel for the defendant objects to the legal validity of the receipt or certificate of November 11,1817, on the ground of its having been altered by Haines by his signing his name toil for improper purposes; and even if it be not liable to objection on that account, still that it does not amount to an assignment, or appropriation, or shew any equitable interest in Haines, entitled to legal protection.

With respect to this first objection, it may be observed, that fraud and forgery are not to be presumed; and according to the facts relating to this point which are stated in the report, it .only appears that Haines signed the paper after it was executed .or signed by the other subscribers; but no circumstances attending the signature are disclosed tending to shew that it was added with fraudulent intent, or even without the consent of the other signers ; on the contrary, that part of the paper to which his name is signed is so drawn up, as evidently to shew that if was intended to be signed by one person only, and from the notes being deposited with him, that person must have been Haines. The language of the receipt or certificate is, “ Then Thomas G. “ Clark lodged in xny hands,” &c. For these reasons we are not disposed nor at liberty to consider the contract expressed in this paper as destroyed or impaired by the signature of Haines, under the circumstances of the case.

The remaining question is, what is the effect of the receipt or certificate above mentioned ? If it be in legal contemplation an assignment or appropriation of the sum due on said notes to Haines, for the purpose of being paid to Purinton, in satisfaction of the joint notes and mortgage which he held, then Clark had no such controling power over the notes as he attempted to exercise ; he had no right to discharge Rogers arid thereby defeat the arrangement which all parties had made.

To render the assignment .or appropriation a valid one, it must appear to have been made in legal form. The notes which were deposited with Haines do not appear to have been negotiable; or assigned by any instrument in writing other than the above mentioned receipt or certificate,, which states the understanding and object of all concerned. But the notes were delivered over tó Haines for the purposes contemplated; and we apprehend, according to the cases Mowry v. Todd, 12 Mass. 281, and Jones v. Witter, 13 Mass. 304, such an assignment is valid, if made on good and valuable consideration. To ascertain the consideration, we must have recourse to the above certificate. By that it appears to have been the object of those who signed it, to place the notes in the hands of Iiaines, that he Plight be able to collect the monies'due on them; and thence realize funds sufficient to pay Clark's proportion of'the sum due to Purinion. In this mahner, it must be understood, Iiaines was to be secured against the eventual payment of any thing more than Ais own proportion' of the debts. In other words, Clark deposited the notes in the mahner above mentioned with Iiaines in the nature of a pledge, and as collateral security for the benefit and safety of Haines. — In this view of the subject, Haines certainly had an equitable interest in the sum due on the 'notes, Similar to what any pawnee or mortgagee of personal property has; an interest deserving legal protection, and .one which Clark had no-right to destroy or impair; in contravention of his own agreement- and that of the others'interested. And as Rogers was a party to this agreement, he had notice that the notes were to be paid to Haines, and not to Clark. After this notice, Rogers must be considered as '-paying the money to Clark in his owri Wrong. Of course the payment cannot avail'him'in' this action; nor can Clark's discharge have any effect; Clark, it is admitted; ne'Ver having paid his part of the joint debt to Purinion.

For many years courts of justice have been gradually becoming more and more inclined to’protect equitable interests; less form is necessary now than formerly’as to the mode of creating such an interest; the object has been to ascertain that it is an interest founded in equity and‘justice and oh good arid adequate consideration. The correctness of this-position is in part proved by the cases of Perkins v. Parker, 1 Mass. 123. Dix v. Cobb, 4 Mass. 508. ‘'Brownc v. Maine Bank, 11 Mass. 153. Quiner v. Marblehead Insurance Company, 10 Mass. 482. Mowry v. Todd and Jones v. Witter, before eited ; and particularly Dunn v. Snell, 15 Mass. 481.

In the case before us, Clark by his receipt has attempted unjustly to destroy the'effect of an equitahle arrangement; to which he was a party, and thereby defraud Haines, whose interests this very arrangement was made to protect. It is the ■ business of a court of justice to prevent'the success of all such experiments. — We are satisfied that the nonsuit must be sot; aside. . •* ‘ ■ ¡

Nonsuit set adds..