59 Mass. 83 - Tebbetts v. Pickering — 59 Mass. 83

James W. Tebbetts vs. Loring Pickering. The amount due on a promissory note, given by the promisor as collateral security for the debt of a third person, which has not been paid, may be recovered in an action for money had and received. If, on the trial of an action in the court of common pleas, the defendant does not object the want of a bill of particulars, no such objection is open to him on exceptions in this court. Where a declaration, besides the common money counts, contains a special count on a promissory note, such note may be given in evidence under the money counts, without being specified in a bill of particulars. A discharge of an insolvent debtor, whose estate does not pay fifty per cent of the claims proved against him, and three fourths in value of whose creditors do not assent thereto, is of no effect, provided the debtor has previously been insolvent, although no discharge was ever granted him. A discharge in insolvency is no defence to an action on a promissory note, by the payee, who was, at the time the same was made, and ever since continued to be a citizen of another state. The declaration in this case, which was an action of assumpsit, tried before Bigelow, J., in the court of common pleas, to recover the amount due on a promissory note, contained the common counts, and a count on the note in the usual form. The plaintiff in proof of his declaration offered in evidence a note signed by the defendant, corresponding with the note declared on; but, it appearing that there was a memorandum at the foot of the note, declaring that it was given as collateral security for certain notes payable to the plaintiff, the defendant moved for a nonsuit, on the ground that inasmuch as the declaration did not set forth the memorandum, there was a material variance between the contract declared on and the instrument offered in evidence. The mo ■ tian was overruled, and the trial proceeded. It was in evidence, on the part of the defendant, that on the 13th of March, 1846, he presented his petition to a master in chancery, for the benefit of the insolvent law, and obtained his discharge in due form, on the 16th of October following; but that his assets did not pay fifty per cent of the debts and claims proved against him ; and that three fourths of his creditors, who had proved their claims, did not assent in writing to the discharge. The plaintiff then introduced evidence, that on the 16th of July, 1841, the defendant applied to a master in chancery, for the benefit of the insolvent law; that under the proceedings on this application, the assets of the defendant did not pay fifty per cent of the claims proved against him ; and that the master in chancery, upon due consideration, refused the defendant his discharge. It also appeared, that at the time the note in suit was executed, the plaintiff was and ever since had been resident in and a citizen of the state of Maine, and that the defendant then was and ever since had been a citizen of this state. The presiding judge ruled, that the defendant’s discharge of the 16th of October, 1846, was no defence to the plaintiff’s claim ; and the jury having returned a verdict accordingly in favor of the plaintiff, the defendant excepted. E. G. Dudley, for the defendant. F. B. Hayes, for the plaintiff. — Dewey, J. (majority) Dewey, J. It is unnecessary to decide whether the instrument offered in evidence supports the special count. If that was the only count upon which the plaintiff could recover, the inquiry would then properly arise, whether the memorandum appended to the note, and signed by the defendant, could in any sense be considered a defeasance of the note, or as containing any thing to qualify the stipulations in the note itself. If so, then upon the authority of the case of Whitaker v. Smith, 4 Pick. 83, the evidence would not support the count on the note. But it is unnecessary to consider this point, as the writ contains the common money counts, and these are quite sufficient to embrace the plaintiff’s case upon the evidence. However special the contract, yet if there remains no other duty, than the mere payment of a stipulated sum of money, the count for money had and received will be sufficient. Felton v. Dickinson, 10 Mass. 287; State Bank v. Hurd, 12 Mass. 171; Baker v. Corey, 19 Pick. 496; Bates v. Curtis, 21 Pick. 247; and more directly in point, being the case of a promissory note, given in consideration that the payee would assign a certain mortgage, the case of Payson v. Whitcomb, 15 Pick. 212. There is no practical inconvenience resulting from this form of pleading, inasmuch as the rules of practice require reasonable notice to be given of the nature of the claim sought to be enforced, whenever the party needs such information, and moves for an order to that effect. It is insisted, nowever, on the part of the defendant, that the plaintiff was required by the rule of the court of common pleas, to file a bill of particulars, or be precluded from introducing this evidence under the general counts. To this objection, two answers may be given: 1st, No such objection appears to have been taken in the court of common pleas, and therefore is not properly open here; as that court had full power, if such objection had been taken, to have granted farther time to the plaintiff for filing such bill of particulars, and thus avoided this objection ; 2d, The defendant' had full notice of this claim of the plaintiff from the pleadings. The note itself now sought to be recovered was set forth as a cause of action in one of the counts. This superseded the necessity of filing a bill of particulars, setting forth the note as a demand upon which the plaintiff would rely at the trial. The further ground of defence, arising from the discharge granted by a master in chancery, is also unavailing to the defendant ; because the case falls within the provisions of the act of 1844, c. 178, § 5, which declares the discharge invalid in the case therein specified; and because the plaintiff, at the time of the malting of the promise, was, and ever since has been, a citizen of the state of Maine. Savoye v. Marsh, 10 Met. 594; Woodbridge v. Allen, 12 Met. 470. Exceptions Overruled.