Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1916-03-30

ana McGlIncuQ0y & Morey ana >. u.
Chabot for the defendants.
At the first trial Mr.. Chabot filed ex-
ceptions and the case was taken to the
law court on motion to set aside the
verdict. 1t was tried at the June term.
1915.
Action was brought to recover on
promissory notes signed by Chabot &
Richard, L. T. Chabot and E. P
Longley. 1t was the elimination of sew
eral years of litigation growing out OF
disagreement relative to the manage
ment Of the corporation on the part of
L. T. Chabot and e. P. Longley, the
heaviest stockholders.
The disagreement resulted in sever
al bills of equity, suits at law, bank
ruptcy proceedings and finally pro-
ceedings in equity to liquidate affairs
Of the corporation.
The rescript favors the plaintiff bank.
On the motion and bill of exceptions
the rescript from the opinion of the
law court was drawn by Justice King,
Justices Bird and Haley dissented. The
law court opinion follows:
An agreement for the extension of
credit between tine holder of note
and the principal debtor which will
discharge surety or accommodation
lnoorser must be valid, enforcible
one, founded on sufficient considera-
tlon and the effect Of which is to give
further definite time to the PRINCIPAL
without the assent Of the surety: it
must be such an agreement as would
present legal obstacle to the prosecu-
tion OF the action upon the note dur
ing the time. The fact of the receipt
OF interest in advance by the holder of
the note from the maker, after it has
become due. is evidence tending to
snow an agreement to extend the time
or payment proper for the considera-
ZION or the jury, and such was the
point decided in Stewart vs.. Oliver.
llo Me. 2oS; but the mere fact that tho
holoer OF an overdue note received in
'erest thereon in advance, from the
MAKER is not necessarily controll;ne,
PROOF that an agreement to extend tho
time Of the payment of the note wa
IN TACT made where the issue was
whether a bank, the payee and holder
OF certain notes. had made an agree
ment with the maker of the notes to
extend the payment hereunder which
would release the surety or accommo-
dation indorser, and the fact was sub
mitted to the jury, with all the other
evidence. that the notes remained in
the bank. overdue for more than two
years. and the interest thereon was
paid by the maker in advance and
usually from month to month, and
there was also testimony in behalf of
the bank by its cashier that, notwith-
standing payment of the interest in
advance there was no agreement on
the part of the bank to extend the
times Of payment, and the jury found
for the plaintiff such finding should
not be set aside by the court as mani
testify wrong and unwarranted by the
evidence.
The receipt by the plaintiff bank
from the receiver of the Chabot &
Richard Co, of it's dividend on the
notes las per decree of court" did not
operate to release the parties second
arily liable on the notes for the unpaid
balance. The fact that the Chabot
& Richard Co, the maker of the noes,
made an assignment Of its property
to J. l.. Reade in trust, to convert the
same into cash and pay the proceeds
thereof on account Of it's Indebtedness
to the plaintiff bank, is no defense
to this action inasmuch as it does not
appear that the bank assented to that
assignment or had any part in it's
making, or became responsible in any
way for the doings Of the assignee;
and moreover, it appears that Mr..
Reade did not take actual possession
of the property as such assignee, ana
that, therefore. the property passed
into the control of the permanent re-
ceiver Of the Chabot & Richard CO..
by whom it was distributed under or
der Of court.
Money deposited in a bank subject
to check does not remain the money
of the depositor. it thereby becomes
the property of the bank, and the bank
becomes a debtor to the depositor To-:
an equal amount the bank is bound
to honor the depositors checks so
long az there is a sufficient balance
due: it has the right to charge agalns,
the depositor's general account any in
denendent Indebtedness then due anu
nayable from him to the bank; it Is not
obliged to do so. it owes no duty 10
the surety to do so; there is, there,
fore no merit in the exceptions ana
tho rulings excluding the inquiries
concerning the general banking ac-
count of the Chabot & Richard o.
with the plaintiff bank during the tlllie
Tho notes remained overdue: nor was
there any error in the rulings exciua-
inc Inquiries as to the value OF 'he
nronertv described in the assignment
from the Chabot & Richard Co. 10
Reade. for there was not sumclen ~
evidence to show that the pialn'll
han, assented to that assignment OK
became responsible to Mr.. Chaoot 10
show that the property so assigneo
was applied to the payment Oh 'he
notes in question.
Finally all Of the questions OF 1act
;nvo,ved in each Of the defenses IN
terposed by the defendants were SUI
mitted to the jury under instructions
80 uh;ch no exceptions were TAKEN
and the verdict returned shows tnat
these questions of fact were oeciosu
~, The fury adversely to the de1eno-
ants. -. -. ~v,-