CASES

ARGUED AND DETERMINED

IN THE

SUPREME JUDICIAL COURT

FOR THE

COUNTY OF WORCESTER, OCTOBER TERM 1838, AT WORCESTER.

A note and mortgage for $4500 having been made by P. to F., P. agreed to pay the debt in goods, and the plaintiff gave his note to F. as collateral security for the performance of P.'s agreement; whereupon the first note and the mortgage were transferred to the plaintiff for his security. P. paid F. according to the agreement, and the plaintiff's note was given up, and the first note and mortgage were transferred by the plaintiff to the defendant, the mortgage being supposed to be a good subsisting security, to be held by the defendant as collateral security for $756 due to him from P., and to indemnify him against his liability to a bank on a note signed by P. as principal and the defendant and another as sureties; and subsequently the defendant assigned the note for $4500 and the mortgage, to the bank, as collateral security for the note held by the bank. P. made a second mortgage of the land to one W. The right in equity of P. to redeem was taken on execution and sold for $2000 to the plaintiff, the defendant, and one C., who had agreed together to become owners of the land and to remove the incumbrances. The officer stated, at the time of the sale, that the sum due on the mortgage to W. was less than $2000. P. then conveyed his right to redeem from the sale on execution, to the plaintiff, the defendant, and C, for $300, they also greeing to pay the debt to the bank. They accordingly paid that debt by giving heir joint and several note to the bank, which they afterwards paid, one third each, and the plaintiff and C. each paid one third of the sum of $756 due to the defendant. The bank then re-transferred the note for $4500 and the mortgage, to VOL. XXI.

1

Claflin

v.

Godfrey.

the defendant, and he assigned two thirds of the same note and mortgage to the plaintiff and C., in consideration of the sums paid by them to the bank and to the defendant. W. afterwards defeated this mortgage on the ground that it had been paid; and his claim under his own mortgage, instead of being less than $2000, turned out to be more than the whole value of the land. In assumpsit by the plaintiff against the defendant, for money had and received and money paid, it was held, that the plaintiff was not entitled to recover one third f $300 paid to P., nor one third of $2000 paid for the equity of redemption sold on execution, but that he was entitled, on the ground of a failure of consideration, to recover one third of the sums paid to the bank and to the defendant.

ASSUMPSIT to recover the sum of $1722.77, with interest from June 17, 1833.

The plaintiff proved, that on April 4, 1828, Stephen R. Parkhurst, Nathan Parkhurst, and Parmenas P. Parkhurst, copartners under the firm of Stephen R. Parkhurst & Co., made their promissory note to John Farnum, in the sum of $4500, and at the same time executed and delivered to him, as security for the note, a mortgage of real estate, by them owned, situate in Milford. The real estate was then subject to two mortgages, one to D. Waldo, to secure the payment of $200, the other to R. Waldo, to secure the payment of $1000.

On July 3, 1830, Stephen R. Parkhurst, in behalf of himself and Nathan and Parmenas, agreed with Farnum, in lieu of the note for $4500, to deliver to him, within six months, 4000 yards of satinet, and to give him security therefor; and in pursuance of this agreement Stephen procured Claflin, the plaintiff, to give his note to Farnum for the satinet. Farnum thereupon transferred to the plaintiff the note for $4500, by indorsing it without recourse to himself, and at the same time assigned to the plaintiff the mortgage given as collateral security for the note. Before the 5th of November then next, Parkhurst & Co. paid the note given by the plaintiff to Farnum, and afterwards, on or before that day, delivered the same to Godfrey, the defendant.

On the same 5th of November, Parkhurst & Co. and the defendant had a reference of various matters between them, the plaintiff being one of the arbitrators; and upon the hearing before the arbitrators it was ascertained and admitted, among other things, that the defendant was then liable as surety for

Parkhurst & Co. to the Mendon bank, for the sum of $4000, on a note made by Parkhurst & Co. as principals and the defendant and one Ithiel Parkhurst as sureties; and that there was due to the defendant from Parkhurst & Co. the sum of $1801-06. The defendant had other claims against Parkhurst & Co. and was under other liabilities on their account, as security for which he held two mortgages.

At the hearing before the arbitrators, the defendant produced the note given by the plaintiff to Farnum, and it was stated by Stephen R. Parkhurst and the defendant, before the arbitrators, the plaintiff being present and hearing the statement, that the satinet with which Parkhurst & Co. had paid Farnum, was made of wool furnished by the defendant under a certain contract, dated March 6, 1830. and that therefore the defendant was to have the benefit of the mortgage made to Farnum. Stephen then agreed with the defendant, that the note given by the plaintiff to Farnum should be given up by the defendant to the plaintiff, and that the note and mortgage for $4500, should be assigned by the plaintiff to the defendant, to be held by the defendant as further security on account of his claims and liabilities; and thereupon the plaintiff, upon receiving his note from the defendant, transferred to the defendant the note and mortgage for $4500, indorsing the note without recourse.

After the arbitrators had made their award, they were requested to apportion the several claims and liabilities of the defendant, upon and among the three mortgages held by him, and in compliance with such request they directed, that he should hold the Farnum mortgage to indemnify him against his liability as surety on the note for $4000 to the Mendon. bank, and as security for the payment of $756, part of the sum found due to him on account. He thereupon agreed to hold the Farnum mortgage for that purpose and no other, and gave a bond to Stephen to that effect. On November 12, 1831, the defendant transferred the note and mortgage for $4500, to the Mendon bank, to be held by the bank as collateral security for the payment of the note of $4000, on which the defendant was a surety.

On November 12, 1831, Stephen, Nathan and Parmenas

Claflin

v.

Godfrey