289 Mass. 397 | Mass. | 1935
This is an action on a promissory note. The writ is dated June 3, 1932. The plaintiff declared on a promissory note, a copy of which is annexed to the declaration. It reads as follows: “$1400.00 Boston, Mass., March 1, 1932. Three months after date we promise to pay to the order of The Auburn Fdry. (Stoker Division)
There was no error in directing a verdict for the plaintiff.
The bill of exceptions, while not stating in terms that the note was introduced in evidence, clearly implies that it was so introduced. And the parties agreed "that the plaintiff was a holder in due course of the note in suit.”
It must be taken that the judge directed the verdict with the pleadings before him and in view of their averments. Brasslavsky v. Boston Elevated Railway, 250 Mass. 403, 404, and cases cited. The pleadings did not put in issue the genuineness of the signature of the defendant as maker of the note or the authority of Harry Rosenfield to sign the note for the defendant. G. L. (Ter. Ed.) c. 231, § 29, provides that a “signature to an instrument declared on or set forth as a cause of action . . . shall be taken as admitted unless the party sought to be charged thereby files in court, within the same length of time after such instrument is pleaded as is allowed for an answer, a specific denial of the genuineness thereof and a demand that it shall be proved at the trial.” This provision includes within its scope not only the actual signing of the instrument but also the authority of the signer, and is not complied with by a mere denial of the signature and of the authority of the
Exceptions overruled.