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payor does not agree within a reasonable time that It shall be paid.

Action on a promiasory note in the words and figures fol*

"$600. . Boston, May 1, 1891.

"On demand, after date, I promise to pay to the order ol
Hollis Bowman Page five hundred dollars, payable when payor
and payee mutually agree. Value received.


The defendant, besides interposing a general denial, claimed
that the suit was prematurely brought, and that while the plain-
tiff was a pupil of the defendant, he deposited in her hands five
hundred dollars as a payment for instruction partly received and
party to be received as the plaintiff should request; that the
plaintiff had received much valuable instruction, and the defend-
ant requested him to continue to receive such instruction, and
was ready to fulfill her contract and had so notified plaintiff.
The judge at the trial directed the jury to return a verdict for
the defendant, on the theory that there was no evidence that the
parties had ever agreed upon any time when the note should ba

N. F. Hesseltine, for the plaintiff.

E. J. Jones and C. W. Cushing, for the defendant

^^^ MOBTON, J. According to the literal construction of
this note, although the defendant promises to pay the plaintiff the
sum named when he demands it, she may escape the performance
of his promise by refusing to agree with the plaintiff when it
shall be paid. We think that it hardly could have been the
intention of the parties to put it into the power of the defendant
thus to avoid payment, and that it is more reasonable to construe
it as meaning that it is payable when and after the payor ought
reasonably to have agreed: White v. Snell, 6 Pick. 425; Sloan v.
Hayden, 110 Mass. 141; Black y. Bachelder, 180 JAjaas. 171;
Hawkins v. Graham, 149 Mass. 284; 14 Am. St. Bep. 422; Crooker
T. Holmes, 65 Me. 195; 20 Am. Bep. 687; Works v. Hershey, 35
Iowa, 840; Lewis v. Tipton, 10 Ohio St. 88; 76 Am. Dec. 498.
The promise to pay is absolute. It is only the time of payment
which is left to future agreement. Evidently, it ii expected

AM, 8f. Rip.. Vou XL1X.-29

Digitized by VnOOQ IC

460 Page v. Cook. [Man.

from the tenor of the note that the parties will agree, and that a
time will be fixed^ and that the note will be paid. But no time is
fixed within which that agreement is to be made. The law will
therefore imply a reasonable time. Besides it is the payment, not
the nonpayment, of the note for which the parties are providing.
If the payor does not, within a reasonable time, agree when the
note shall be paid, there is nothing unjust nor at variance with
the real meaning of the contract in holding that the payee may
thereupon demand payment, and, if the note is not paid, pro-
ceed to collect it. The case of Barnard v. Gushing, 4 Met. 230,
88 Am. Dec. 362, is distinguishable. The question chiefly dis-
cussed in that case was whether the indorsement on the note
constituted a part of it, and the court held that it did. The
indorsement expressly provided, not only that the payees would
receive the amount of the note when convenient for the
* promisors to pay, but that they would not compel its payment
In bringing suit the payees proceeded, therefore, in direct
violation of their agreement. Possibly, if the question arose
now, a different result might be reached from that arrived at in
that case.

According to the terms of the report the entry must be, ver-
dict set aside, and judgment for the plaintiff for the amount of
the note, with interest from the date of the writ

OF PAYMENT.— A note is payable within a reasonable time after ita
execution and delivery, where the maker promises bv it to pay a cer-
tain sum of money "when I can make it convenient'': Lewis v. Tip-
ton, 10 Ohio St. 88* 75 Am. Dec. 498, and note. Where promisaorr
note was made "payable when I sell mv place where I now live," ft
was held that the maker was bound to aell his place within a reasonable
time, and failing in that the note was due: Grooker v. Holmes, 20 Am.
Rep. 687. Defendant executed his promissory note promising to pay a
certain sum in six months, or as soon as I can with due diligence make
the money out of the sale of a patent right. It was heid that the note
was payable in liz months s Palmer v* Hummer, 10 Kan. 404; 15 Am»

Digitized by


Sept 189&] FowLE v. Child. 451

PowLB V. Child.

[164 MjLMACHTBXm, 210.]

IS BXTINOUISHBD, the rigbt to retain eollatenl pledged as sccur-
Itj for Its payment remains. Such indebtedness may, therefore, be
given in evidence thougb it bas been pleaded as a setoff in an action
still pending.

part of one general scheme or plan of fraud, designed or put in execu-
tion by the same person, are admissible to prove that an act which
has been done by someone was in fact done by the person who de-
signed and pursued the plan^ if the act in question was a necessary
part of the plan. Hence, where It is claimed that a party has been
guilty of defrauding another by phowing money, placing; it in posses-
sion of the latter, and securing a loan thereon, after which the money
was abstracted by some sleight of hand, 'evidence of such practices
and fraud upon others Is admissible.

TION IS NOT ADMISSIBLE in favor of the accused in a civil action
to prove that he was not guilty of the crime with which he was

Action for money had and received. During three years
plaintiff had been in the habit of borrowing moneys from the
defendant, giving notes therefor secured by cash deposits in
boxes in safety vaults in Boston taken in the names of the plain-
tiff and the defendants. In May, 1886, the accounts were
adjusted, the plaintiff giving a note to each of the defendants,
secured by a pledge of moneys so deposited in the vaults. In
November, 1888, the plaintiff was arrested on a criminal charge,
and, while he was in confinement, the defendants obtained from
him a power of attorney authorizing them to open the safety
vaults. The plaintiff contended that the defendants did so and
took therefrom a large sum of money which it was the object of
the present action to recover. The defendants, on their part,
insisted that they found nothing in the vaults but scraps of
paper and other worthless stuff. There was evidence tending
to prove that the plaintiff had never gone to the vaults and exam-
ined their contents, except in company with one of the defend-
ants or their agent. The defendants, to show that if any money
was taken by them from the vaults they were entitled to retain
it as collateral security, introduced in evidence the notes given
in May, 1886, to the admission in evidence of which plaintiff
excepted on the ground that the same notes had been pleaded
as a setoff in another action and allowed in the report of the
referee therein. Final judgment, however, had not been entered
in the action, and the record thereof was excluded from evidence.
The defendants insisted that the plaintiff had cheated and de-

Digitized by


462 Fowls v. Child. [ICaM.

frauded ihem, and introduced eyidence fending {o abow that
the boxes in the safe deposit vaultsy when opened, were found to
contain nothing of yalue, and that the plaintiff had had other
transactions of a similar character, consisting of borrowing
money upon tumblers which appeared to contain gold pieces, but
which in fact contained only pasteboard or gilt pieces made in
representation of gold. Also, that the plaintiff had borrowed
other moneys upon the security of a ticket issued by the Col-
lateral Loan Company, reciting that the company held aa
security one hundred dollars in bank bills, and that, upon the
presentation of the ticket, it was found that the only bill
deposited by the plaintiff was a ten dollar bill folded so aa to
resemble a hundred dollar bill. In rebuttal the plaintiff sought
to have introduced in evidence the record of a criminal trial in
which he had been charged with obtaining money from the
Collateral Loan Company under fake pretenses, which trial had
resulted in his acquittal. This evidence being excluded, the
plaintiff excepted. The jury returned a verdict for the de-

W. H. Baker and C. H. Welch, for the plaintiff.

R. M. Morse, for the defendants.

2^^ BARKER, J. 1. The first and second exceptions may be
disposed of together. The notes given by the plaintiff to the
defendants upon the adjustment of the accounts between them
in May, 1886, were secured by pledge of the money which the
plaintiff sought to recover in this action, and were admissible in
evidence for the defense, upon the issue whether, if they took
that money, they were entitled to retain it aa collateral security
for the notes. The record of the former suit, in which the notes
Iiad been pleaded in setoff against the plaintiff, showed that
the suit was still pending; as it had Dot gone to judgment, the
*** notes were not extinguished, and the record offered by the
plaintiff was immaterial, and rightly excluded. Until the notes
were extinguished, the right to retain the collateral pledged as
security for their payment remained in the defendants.

2. The next class of exceptions is to the admission of evidence
that during the period covered by the transactions upon which
the plaintiff's suit is founded, he committed other frauds upon
the defendants in other transactions in which they lent him
money. This evidence was introduced in support of the de-
fendants' contentions that they took no money from the safety
Taolta, and that they found in the vaults nothing but worthless

Digitized by


Sept 1896.] FowLE v. Cbiuk 468

bundles secretly subetituted by the plaintiff for tbe money which
he had himself fraudulently removed.

Acts which are part of one general scheme or plan of fraud,
designed and put into execution by the same person, are admis-
sible to prove that an act which has been done by someone was in
fact done by the person who designed and pursued the plan, if
the act in question is a necessary part of the plan: Common-
wealth y. Bobinson, 146 Mass. 571, 577. See, also, Wiggin y.
Day, 9 Gray, 97; Lynde y. McGregor, 13 Allen, 172; Jordan y.
Osgood, 109 Mass. 457; 12 Am. Bep. 731; Haskins y. Warren,
115 Mass. 514; Horton y. Weiner, 124 Mass. 92; Commonwealth
y. White, 145 Mass. 392. And the plan itself, and the acts done
in pursuance of it, may all be proved by circumstantial evidence:
Commonwealth v. Bobinson, 146 Mass. 571. The transactions
shown in the evidence in the present case were very strange and
peculiar. One reasonable explanation of them is that they dis-
close a plan by which the plaintiff designed to cheat the de-
fendants, after first obtaining their confidence, by showing them
that he had money in large amoimts, by intrusting his money to
their keeping, borrowing from them upon their belief that
they had it in their keeping, and, when his bor-
rowing had reached a sufficient extent, by secretly
removing his money from their possession by sleight
of hand, and substituting in its stead something of no
value. All the transactions put in evidence were between the
same paities, during the same period of time, and were of the
general character of confidence games, carried through by de-
ception and jugglery. They may well have been parts of a
single plan, the chi^ end of which was the abstraction by the
*^^ plaintiff of the money from the safety boxes; and if so, any
acts done by him in pursuance of that plan were competent to
show that it was he who did the act which was its necessary cul-
mination if successfully carried through.

3. The remaining exception is to the exclusion of evidence
that the plaintiff had been acquitted in a criminal prosecution
for one of the frauds, evidence of which was admitted against
him. But that acquittal was res inter alios, like the withdrawal
of suits by other parties in Haskins v. Warren, 115 Mass. 51^,
538. Because the defendants were strangers to the judgment
offered, it could not affect them: Commonwealth v. Waters, 11
Gray, 81; Cluff v. Mutual Ben. etc. Ins. Co., 99 Mass. 317, 325;
Parker y. Kenyon, 112 Mass. 264.

Exceptions overruled.

Digitized by


•454 Nashua B. B. Gobp. v. Boston B. B. Cobp. [Mast.

pledffee's right to hold possession of the thing pledged to him, and if
the pledgor recover possession wrongfully without the pledgee's consent,
'the pledge is nevertneless valid : Extended note to Booinson t. Hurley,
70 Am. Dec. 600.

EVIDENCE OF OTHER CRIMES. — Testimony tending to show
the commission of another offense than the one charged is not as a gen-
eral rnlo admissible! but where such offense is intimately connected
with the one charged, important proof to establish f be latter cannot be
excluded because it may tend to prove the formei : State v. Reed, &3
Kan. 767; 42 Am. St. Rep. 322, and note. See, also, the note to Bark-
iey V. Copeland, 6 Am. St. Rep. 418.

A JUDGMENT OF CONVICTION in a criminal prosecution cannot
be given in evidence in a civil action: Steel v. Caveauz, 8 Mart. (La.)
'1(18; 13 Am. Dec 288, and especially note.

Kashua AND Lowell Hailboad Corporation v.
Boston and Lowell Bailroad Corporation.

[164 Mama chUWIU ^ 222.]

OORPORATIONS-ULTRA vires.— If the manager of two rail-
'way corporations uses their Joint funds for the improvement of the
road of one, the latter is liable to an action to recover such part of
the funds of the other as was thus expended. This right is not im«
paired by the fact that the corporations may have entered into an
ultra Tires traffic contract

OATA, though IT WAS INTERPOSED In a prior auit along with
other claims and leave to withdraw it was denied by the court. If the
final Judgment of the court appeared to be upon the other daims, and
there is no evidence that the claim, the right to withdraw which was
refused, was in fact argued, considered, or determined by the court.

RIGHT TO WITHDRAW one of the claims sued upon, and, if his
application for leave to withdraw It Is refused by the court, the de-
fendant may treat the claim as still proper for consideration, but it is,
nevertheless, not res Judicata, if the evidence shows that it was not
presented nor considered by the court

Suit in equity for an accounting under a contract entered into
by the plaintiff and defendant for the joint operation of their


P. A. Brooks, for the plaintiff.

J. H. Benton Jr., for the defendant

•« ALLEN, J. 1. The iron of the Boston and Lowell Rail-
road being at the outset in worse relative condition than that of
the Nashua and Lowell Railroad and branches, it was agreed that
in *** the final settlement of the contract the iron of the Boston
and Lowell road should be left in the same relative worse con-

Digitized by


Sept 1895.] Nashua K B. Cobp. v. Bostoh B. B. Cobp. 465

dition, or otherwise its improyed rektiye condition should ba
paid for by the Boston and Lowell Bailroad Corporation on its
separate account. The existing difference at the outset was ap-
praised as equivalent to the cost of replacing three hundred tons
of old rails with new. The report finds that^ at the termination
of the contract^ the rails of the Boston and Lowell road were
not in a relatively worse condition than those of the Nashua and
Lowell road, and that the cost of replacing three hundred tons
of old rails with new was agreed by the parties to be nine
thousand seven hundred and eleven dollars and eighty-eight
cents. The report further finds that whatever was expended
upon the roadbed of the Boston and Lowell road during the ex-
istence of the contract was from the joint fund. It thus appears
that, instead of the Boston and Lowell Bailroad Company's pay-
ing for the improvement on its separate account, the improve-
ment was paid for out of the joint fund, in which the plaintiff was
interested to the extent of thirty-one per ceni The amount,
therefore, which the plaintiff could recover for this item is thirty-
one per cent of nine thousand seven hundred and eleven dollars
and eighty-eight cents, or three thousand and ten dollars and
sixty-eight cents: Nashua etc. B. B. v. Boston etc. B. B., 167
Mass. 268.

2. The defendant, however, contends that the traffic contract
was ultra, vires, and that neither corporation had power under
its charter to agree with the other to operate their railroads as
one road. No authority has been cited in favor of this view, but
it would seem to be supported by decisions in New Hampshire:
Burke v. Concord B. B., 61 N. H. 160. See, also, Boston etc.
B. B. V. Boston etc. B. B., 66 N. H. 893.

We do not, however, need to enter upon this question, because
the plaintiff's suit, to the extent above mentioned, may be main-
tained on an independent ground. The joint manager, without
authority either under the contract or otherwise, used the joint
fund belonging to the two railroad companies for the improve-
ment of the relative condition of the defendant's road. In this
way the defendant has, without right, received the benefit of
funds belonging to the plaintiff, and an action may be main-
tained to recover for the same, even though the traffic contract
was ultra vires: Slater Woolen Co. v. Lamb, 143 Mass. 420; Nims v.
Mount Hermon Boys' School, 160 Mass. 177; 39 Am. St. Bep. 467;
L'Herbette «** v. Httsfield Nat Bank, 162 Mass. 137; 44 Am.
St. Bep. 364; Central Trans. Co. v. Pullman's Palace Car Co.,
189 XI. S. 24; Manchester etc. B. B. v. Concord R B. 66 N. H.

Digitized by


456 Nashua R. R. Corp. «. Boston R. R. Cobp. [MtM.

100: post, p. 582; Central Trust a t. Ohio Cent R K, 88 Fed.
Rep. 306.

3. The defendant further contends that the plaintiff is
estopped to maintain this suit hy the judgment or decree entered
in favor of the plaintiff against the defendant in the circuit court
of the United States. No authority is cited in support of this
view. It appears that the plaintiff brought a bill in equity in
that court against the defendant upon the claim now in suit here^
and upon other distinct claims; that after issue was joined
therein, the plaintiff moved for leave to amend its bill by striking
out the present claim; that after a hearing this motion was denied
by the court; that thereupon the plaintiff filed in the circuit
court a paper disclaiming and discontinuing its bill as to said
claim; that this paper was filed without leave of court, and there
was never any order of court upon it; that after various
intermediate proceedings a final decree was entered in the circuit
court for the plaintiff for one of the claims set forth in its bill, no
mention being made therein of the claim now in suit; and that
afterwards said decree was performed, and satisfied of record.

The defendant has not in its answer averred, nor by its evi-
. dence proved, that the present claim was in fact argued, consid-
ered, or determined in the circuit court. The report is silent
upon this point. If this had been done in point of fact, of
course the present suit could not be maintained. What we have
to consider is, whether, upon the case as it is presented to us, we
should assume that it was so determined, and whether, looking
merely at the record, the legal effect of the former decree is to
estop the plaintiff now.

In the first place, it is clear that the plaintiff's attempt to with-
draw the present claim from that suit, in spite of the refusal of
the court to permit such withdrawal, was nugatory. The case
stood thereafter just as if no such attempt had been made. No
doubt, as a general, though not universal, proposition, at any
time before a hearing the court, on application made, will allow
a plaintiff in equity to dismiss his whole bill as of course, upon
payment of costs: Kempton v. Burgess, 136 Mass. 192. Such
*** dismissal, however, is not made without an order of court;
and there may be facts which would lead the court to refuse to
allow it: Chicago etc. R. R. v. Union Rolling Mill, 109 U. S. 702,
713; Electrical Accumulator Co. v. Brush Electric Co., 44 Fed.
Rep. 602; Hat-Sweat Mfg. Co. v. Waring, 46 Fed. Rep. 87, 106;
Hershberger v. Blewett, 55 Fed. Rep. 170; Detroit v. Detroit City
By., 65 Fed. Rep. 669; Stevens v. Railroads, 4 Fed. Rep. 97;
Badger v. Badger, 1 Cliff. 237; Folger v. The Robert G. Shaw, t

Digitized by


Sept. 1896.] Nabhua R. R. Corp. v. Boston B. B. Cobp. 457

Woodb. ft M. 631; Wilkmson y. Willdnfion, 2 B. I. 414; Cooens
Y. Sisson^ 6 B. I. 489. Where a plaintiff wishes to dismiss his
bill as to a part of the relief prayed for, the proper way is to apply
for leave to amend by striking out: Camden etc. B. B. y. Stew-
art, 4 C. E. Oreen, 69. This the plaintiff did, and his motion was
denied. The defendant was therefore entitled to treat the claim
now in suit as still a part of the matter to be heard and de-
termined in that suit.

It does not necessarily follow, however, that the judgment in
that case is a bar to the present suit. It has been held elsewhere
that if a plaintiff sues in one action for several distinct demands,
and obtains a general verdict and judgment, the record of such
judgment is not conclusive evidence that all of the demands were
included therein, and will not bar a subsequent action for such as
in fact were not adjudicated upon: Seddon v. Tutop, 6 Term
Bep. 607; Paine v. Schenectady Ins. Co., 12 R I. 440; Hunger-
ford's Appeal, 41 Conn. 322; Supples v. Cannon, 44 Conn. 424;
Allebaugh v. Coakley, 76 Va. 628; Wheeler v. Van Houten, 12
Johns. 311, dictum. This question was discussed, but not de-
cided, in Goodrich v. Yale, 8 Allen, 464, where it was said that
the doctrine of Seldon v. Tutop, 6 Term Hep. 607, '^ not en-
tirely free from objection, inasmuch as it allows a party unneces-
sarily to subject the other party to a second suit, after the plaintiff
has elected to unite two causes of action in one suit, and when he
has had full opportunity to obtain judgment for his entire dam-
ages." The court, however, was not ready to deny the doctrine
of that decision, and, upon consideration, we think it better not
to extend the estoppel of a former judgment so far as to assume
conclusively that such a distinct demand was determined in favor
ol the defendant, when the record does not so state, but merely
shows that the other demands were determined *^ in favor of
the plaintiff. Such estoppel includes whatever was actually de-
termined, and whatever was necessarily involved in the actual de-
termination; but where the former action included several dis-
tinct claims or demands, which were distinct causes of action, a
demand or cause of action which in poi^t of fact was not passed
upon may be the subject of a subsequent suit. The defendant
might have brought such demand to the attention of the court,
and might have asked for and obtained an adjudication upon it
But if this was not done, and if there was no such adjudication,
ihen there is no estoppel in respect to it. This limitation of the
doctrine of estoppel by former judgment is in accordance with
the general tendency of the decisions: Foye v. Patch, 132 Mass.

Digitized by


458 Nashua B. R. Corp. v. Boston B. B. Corp. [Haas.

105; Hooker ▼. Hubbard, 102 Mass. 239, 245; Burlen t. Shannon,
99 Mass. 200; 96 Am. Dec. 733; Bussell ▼. Place, 94 IT. S. 606;
De Sollar t. Haiiscome, 158 U. S. 216, 221; Dunlap t. Glidden,
34 Me. 517; Pray v. Hegeman, 98 N. T. 351; Doe y. Oliw, 2
Smith's Lead. Cas., 7th Am. ed., 699, and cases cited.

The demand now in suit, therefore, is not barred by the former
judgment, unless it waa in fact adjudicated upon therein; and the
record laid before us is not condusiTe eyidence that it was eo
adjudicated upon. If there is any question as to the bet, it will
be djetermined in the superior court

Unless in point of fact it was so adjudicated, the plaintiS
should have a decree for three thousand and ten dollars and dxtj-
eight cents, and interest.

Ordered accordingly.

HOLMES, J. In my opinion, when the pleadings present
three issues, and the final decree is for the plaintiff upon two of
them and is silent as to the third, it has the same effect, with
regard to that issue, as if it had been expressly for the defendant:
Thompson v. McKay, 41 Cal. 221, 227. In either form, it ii a

Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 53 of 121)