« ZurückWeiter »
The note was signed by the firm of Meloon and Wyeth and was dated October 22, 1900, and was payable three months after date to the plaintiff's order. The plaintiff discounted it, and 67 delivered the proceeds to the firm. The firm consisted of Mary C. Meloon and William H. Wyeth, and they with one Hopkins H. Meloon severally indorsed the note before it was delivered to the plaintiff. The firm also inūorsed it. On January 18, 1901, before the note came due, the firm notified the plaintiff that they were unable to pay it, and thereupon, on that date, the plaintiff executed and delivered to the firm, with the knowledge of all of the defendants, an agreement agreeing that in consideration of the payment by the firm of seventy-five per cent of the amount due on the note and the acceptance by other creditors of the firm of the same per cent of their respective claims, it would never commence or prosecute any legal proceedings against the firm to collect the note, but expressly reserving "all its rights to proceed against Mary C. Meloon, H. H. Meloon and W. H. Wyeth, the indorsers upon said notes, individ. ually to collect the balance due upon said notes.” The firm subsequently paid the plaintiff and its other creditors the percentage agreed upon. Demand has been duly made for the payment of the balance and the note has been duly protested. The defendants Wyeth and Mary C. Meloon contend that the effect of what has been done is to discharge them from liability. We do not think that is so. There can be no doubt that the holder and owner of a negotiable promissory note may covenant with the maker not to sue, as was done in this case, and reserve all his rights against the indorsers: Taunton Nat. Bank v. Stetson, 145 Mass. 366, 14 N. E. 349; Dickinson v. Metacomet Nat. Bank, 130 Mass. 132; Tobey v. Ellis, 114 Mass. 120.
It may be observed, though of course it has nothing to do with the decision, that it is now expressly provided by the Revised Laws which went into effect since this action was brought that "The holder may expressly renounce his rights against any party to the instrument, before, at, or after its maturity": Rev. Laws, c. 73, sec. 139. In this case the covenant not to sue was with the firm as a firm, and not with the indorsers. All rights against the indorsers as such were expressly reserved. The defendants Wyeth and Mary C. Meloon were none the less indorsers and none the less liable as such because they were also liable as members of the firm which made the note. The effect of the covcnant not to sue was to release the firm as the maker, not 68 the individual members as indorsers. It is true
Am. $t. Rep., Vol. 97-27
that each partner is liable in solido for the debts of the firm; but his separate estate is liable in the first instance for his individual debts, and his individual indorsement of a firm note may there. fore enhance the security afforded by it. For this reason the holder of a firm note indorsed by the individual members of the firm might be willing to compound his claim against the firm, if he could reserve his rights against the indorsers, and we see no objection to his doing so: See Roger Williams Nat. Bank v. Hall, 160 Mass. 171, 35 N. E. 663.
A Release of the Maker of a promissory note without the consent of the indorser, operates to release the indorser: Union Nat. Bank v. Grant, 48 La. Ann. 18, 18 South. 705; Eldredge v. Chacon, Crabbe, 296, Fed. Cas. No. 4329. See, too, Commercial Bank v. Cunningham, 24 Pick. 270, 35 Am. Dec. 322; Smith v. Rice, 27 Mo. 505, 72 Am, Dec. 281; Priest v. Watson, 75 Mo. 310, 42 Am. Rep. 409. But it is held otherwise if the instrument by which the maker is released expressly reserves the remedy of the holder of the note against the indorser: Tobey v. Ellis, 114 Mass. 120. And a covenant not to sue the maker, reserving all rights against the other parties, has been held not to release the indorsers: Kenworthy v. Sawyer, 125 Mass. 28.
YOUNG V. INHABITANTS OF FALMOUTH.
[183 Mass. 80, 66 N. E. 419.] MECHANICS' LIENS.—A Public Library Building, erected by a town for a free public library, is not subject to a mechanic's lien. (p. 419.)
S. R. Cutler and J. W. James, for the petitioner.
80 MORTON, J. This is a petition to enforce a mechanic's lien for labor performed in the erection of a building by the respondent town for a free public library. The case was sent to an auditor, and at the trial in the superior court the only evidence before the jury was the auditor's report. The petitioner requested the judge to rule that the building and land were subject to a mechanic's lien in his favor, and that he was entitled to recover. The judge refused so to rule and ruled that the building was not subject to a mechanic's lien, and directed the jury to return a verdict for the respondent. The
case is here on exceptions by the petitioner to the judge's ruling and to his refusal to rule as requested.
The sole question is whether the building is subject to a mechanic's lien. We do not think that it is. It has been decided that a schoolhouse held by a municipal corporation for public school purposes is not subject to a mechanic's lien, and the decision is said to be in accord with the almost unanimous current of decisions elsewhere: Lessard v. Revere, 171 Mass. 294, 50 N. E. 533; Staples v. Somerville, 176 Mass. 237, 242, 57 N. E. 380. The ground of decision in such cases is that the buildings are held for a public use, and it is against public policy, in the absence of express provisions to the contrary, that the instrumentalities for $1 carrying on the government should be the subject of seizure and sale for debt. It is true that cities and towns are not required to maintain public libraries as they are schools and highways for instance. But it is plain, we think, that money appropriated for the erection and maintenance of a free public library is appropriated for a public use: Rev. Laws, c. 25, sec. 15; Kingman v. Brockton, 153 Mass. 255, 26 N. E. 998. Whether a use is public does not depend on whether it is compulsory, but on its nature and purpose: Tindley v. Salem, 137 Mass. 171, 50 Am. Rep. 289. Towns and cities derive no gain or profit from the establishment and maintenance of free public libraries any more than they do from that of free public schools. They are established solely for the general and common good, and we cannot doubt that they come within the same principle as instrumentalities of government that free public schools do.
Judgment for the respondent on the verdict.
The Mechanic's Lien Laus do not, in the absence of express provisior.s, apply to public buildings erected by states, counties, and towns for public use: Pittsburg Testing Laboratory v. Milwaukee Electric etc. Co., 110 Wis. 633, 86 N. W. 592, 84 Am. St. Rep. 948, and cases cited in the cross-reference thereto; monographic note to La Crosse etc. R. R. Co., v. Vanderpool, 78 Am. Dec. 696.
MINNS v. BILLINGS.
[183 Mass. 126, 66 N. E. 593.) CHARITIES, Public-Funds for the Relief of Certain Societies.—Bequests to the trustees of the permanent fund of the Franklin Typographical Society and to a like fund for the sick and disabled members of the Teachers' Mutual Benefit Association, and also for the benefit of sick and disabled members of the Bank Officers' Association of the city of Boston are all bequests for public charities. (p. 422.)
CHARITIES, Public.--Bequests for the benefit of the Massachusetts Society for the Prevention of Cruelty to Animals, and for the benefit of the Animals' Rescue League of Boston are bequests for public charities. (p. 423.)
CHARITIES, Public.-A Bequest to the Proprietors of the Boston Athenaeum, a corporation established for the purpose of maintaining a valuable and extensive collection of such rare and valuable works, in ancient and foreign languages, as are not usually to be met with in our country, but which are deemed indispensable to those who would perfect themselves in the sciences, and for the purpose of forming a museum of natural and artificial curiosities and productions, scientifically arranged, is a bequest to a public charity. (p. 425.)
Suit in equity brought by the surviving executors of Robert C. Billings for instructions. The clause of the will under which the executors acted and in respect to which they asked for instructions was as follows:
“Whereas by said will I provided that 'any sums still remaining shall be disposed of by my executors, they using their best judgment and taste in doing so' now in order that said charitable trust may not fail for want of definiteness or any other cause I give all the rest, residue and remainder of
estate to 'my said executors and the survivors or survivor of them and to his successor in trust nevertheless to apply the whole or any part of the principal and income, in their discretion, to such charitable purposes as to them, or the survivors or survivor of them or any administrator with the will annexed shall seem proper and for the purpose I give to them the widest discretion and request that no surety shall be required on any bond from them, or either of them—and that they may take all the time they please in disposing of said residue. My executors and trustees may in their discretion continue any investment made by me—and shall be responsible only for their willful' defaults."
By agreement of the parties, the bill and answers were rea served for determination by the full court.
Roland Gray, for the Boston Athenaeum.
L. Cushing and H. D. McLellan, for the Animal Rescue League.
S. C. Darling, for the trustees of the Permanent Charity Fund of the Bank Officers' Association of the City of Boston.
C. T. Gallagher, for the Franklin Typographical Society.
F. H. Nash, assistant attorney general, for the commonwealth.
127 KNOWLTON, C. J. The plaintiffs, surviving executors of the will of Robert C. Billings, late of Boston, deceased, have received, under the will and the seventh codicil, all the rest, residue and remainder of his estate after paying legacies, in trust to apply the whole or any part of the principal and income “to such charitable purposes” as to them may seem proper. They propose to apply various sums from the fund in their hands to one hundred and twenty-six different objects and purposes which are set out in this bill, and they ask the instructions of the court as to whether some of these objects and purposes are "charitable purposes” within the meaning of the will and codicil. They state their intention in most cases to make the gifts to the institutions mentioned as a permanent fund in each case, the income only to be used for the general purposes of the institution. The next of kin and the attorney general have filed answers, and the attorney general has filed a brief. Some of the proposed beneficiaries have asked and been permitted to file briefs as amici curiæ.
Only a few of the proposed gifts have been called in question by the attorney general. The next of kin in his answer merely joins in the prayer of the bill. The other proposed gifts have 128 not received so extended an examination by the court as would have been thought necessary if objection or question had been made in regard to them by any party interested. We shall not discuss them any further than to say that, upon the statements contained in the bill, we see nothing to show that they may not all be treated as gifts to public charities under the liberal doctrines established by recent decisions of this court. We shall, therefore, assume that the particular facts in each case, taken in connection with the general facts