Sherer v. Collins
Massachusetts Supreme Judicial Court
Contract on a promissory note for $500, dated August 20, 1868, made by the defendants payable ten days after date to the order of the plaintiffs, and indorsed with a memorandum of the receipt of $400 by them thereon February 26, 1869. Writ dated July 14,1869. The defendants, in an amended answer, admitted the mailing of the note; alleged that it had become the property of the plaintiff Sherer only; and further alleged that on or about June 17, 1869, Sherer and the defendant…
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Contract on a promissory note for $500, dated August 20, 1868, made by the defendants payable ten days after date to the order of the plaintiffs, and indorsed with a memorandum of the receipt of $400 by them thereon February 26, 1869. Writ dated July 14,1869. The defendants, in an amended answer, admitted the mailing of the note; alleged that it had become the property of the plaintiff Sherer only; and further alleged that on or about June 17, 1869, Sherer and the defendant Collins entered into an agreement for Collins to furnish some freestone, and cut and finish it for Sherer, and receive…
1Opinion of the Court
By the Court.
The action of Collins v. Sherer, for the work and material referred to, must have proceeded on the ground that he was not obliged to apply the amount due to him in payment of the note, but might recover for it without regard to the note. Upon the testimony of Morse uncontrolled, it appeared that tne note had not been applied in that action towards the payment of Collins’s claim; and it followed that the claim could not be applied in this action in payment of the note. The instruction to the jury was correct. Exceptions overruled.
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