Supreme Court of Rhode Island, 1852

Beckwith v. Brown Hazard

Supreme Court of Rhode Island · Decided September 6, 1852

2 R.I. 311

Counsel

Ames and Jenckes, for the defendants, contended, that John D. Brown was not required to give a release because the proviso stipulating for it, being connected with the clause providing for non-preferred creditors, was intended to be restricted to them and not to apply to such as were preferred; that if the release were required from him, he had substantially complied with the requisition by endorsing receipts in full upon the check and note and surrendering them, that the release need not be under seal, but if in substance executed equity would not regard the form; that if the proviso extended to all the clauses of the deed and the release had not been executed, yet the plaintiff could not claim back the amount applied in payment of the demand of Brown, since in such case that amount would not fall into a fund to be divided among the releasing creditors, but by the terms of the proviso resulted to the assignor. They cited Andrews v. Ludlow, 5 Pick. 28; Harris v. Sumner, 2 Pick. 129; Hastings v. Baldwin, 17 Mass. 552 ; Lupton v. Cutter, 8 Pick. 298; Everett v. Walcott, 15 Pick. 94; Forsyth on Debtor Creditor, 50; Makenzie v. Makenzie, 16 Vesey, 362; Ex parte Shaw, 1 Mad. 321; Bradley v. Gregory, 2 Camp. 383; Hosack v. Rogers, 6 Paige, 415. Potter, for the plaintiff, contended, that the proviso stipulating for a discharge extended to all the clauses of the assignments; that in itself the word discharge imported a release under seal, and the words "execute and deliver" used in connection with it showed that that was its meaning, since they were inapplicable to receipts endorsed on a check or note, that the composition must be under seal to operate a discharge in full where only a part of the debt was paid; and that the dividends which, it was provided, should result to the creditor in case of a refusal to execute the discharge, were the dividends arising on the last class of claims. Phenix Bank v. Sullivan, 9 Pick. 410; Cheever v. Imlay, 7 Serg. Rawle, 510; Wilson v. Knepplers, 10 Serg. Rawle, 439; Sheepshanks v. Cohen, 14 Serg. Rawle, 35; Stoddart v. Allen, 1 Rawle, 258; Mather v. Pratt, 4 Dallas, 224; Tysing v. Dorr, 6 Whart. 256; Battles v. Fobes, 21 Pick. 239; Dedham Bank v. Richards, 2 Met. 105; Pierpont Lord v. Graham, 4 Wn. 232 ; New England Bank v. Lewis, 8 Pick. 113. The court was of opinion that the provision that the dividends of non-releasing creditors should result to the assignor was not confined to claims and demands included in the last clause of the assignment but was general, and that therefore inasmuch as the sum applied to the payment of the claims of John D. Brown would result to the assignor, if forfeited by John D. Brown by his omission to execute the discharge, and was not subject to distribution among the releasing creditors, the plaintiff was not entitled to the relief prayed for. Bill dismissed without prejudice.

Opinion of the Court

The bill states that, at the date of this assignment, Dockray was indebted to the plaintiff in the sum of nine hundred and forty-two dollars and twenty-seven cents; and that the plaintiff, on the 27th of October, the last day in which creditors were allowed to come in under the assignment, called upon Edward H. Hazard, and was told that no one had come in, and was shown a general discharge for the creditors, which was not signed by any one; that he then executed the discharge required and *Page 313 was frequently told, on days subsequent to this, both by Hazard and Brown, that no one else had signed the discharge; notwithstanding which, the said Brown, with the privity of said Hazard, had collected and appropriated eleven hundred and eighty-six dollars and eighty-six cents, to the payment of his claim, specified in the second clause of the assignment. The bill prays that this sum may be made a charge upon the estate of the said John D. Brown, and that the defendants may be decreed to pay into court for the plaintiff or to him personally, so much of said sum as will pay his claim with interest.

The answer states, that the claim of John D. Brown, referred to in the second clause of the assignment, consisted of a check upon the Eagle Bank, of Providence, for one hundred and thirty dollars, dated June 22, 1847, and a note dated April 5th, 1847, for one thousand and fifty dollars and ten cents, due October 8th, 1847, signed by said Brown and used by Dockray, and for which he gave his receipt and promise to pay the same at maturity; that the assigned estate was sold at auction on the 23d of October, 1847, and on the same day, the said Brown was paid the amount due on said check, to wit, one hundred and thirty-two dollars and sixty-one cents, and wrote his receipt in full for the same on the back thereof; and on the same day, said Brown was paid on account of the note and to be endorsed thereon the sum of seven hundred and fifty-seven dollars, and on the 26th of October, 1847, the sum of two hundred and ninety-seven dollars and twenty-five cents, in full satisfaction of said note, and said sums were endorsed thereon in full discharge thereof, and said note and check were surrendered to said assignees as cancelled and discharged, and that the plaintiff at the time he signed the discharge, was made acquainted with these facts. The case was argued upon the pleadings and proofs. *Page 314

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