318 Mass. 366 | Mass. | 1945
This bill of complaint is brought to recover the amount alleged to be due the plaintiff upon a promissory note signed by the defendant Albert L. Paeff and indorsed by the defendant Irving D. Paeff, and to reach and apply shares 'of stock of the defendant Davenport-Brown Inc. alleged to be owned by the defendant Albert L. Paeff, and certain woodworking machinery also alleged to be owned by the defendants Paeff, title to which it is alleged they have placed in the name of the defendant American Wood Products Manufacturing Co. or of others whose names are unknown to the plaintiff.
The bill contains among others the following allegations: “6. Your plaintiff is the holder of a promissory note, a
The defendants Paeff, hereinafter referred to as the defendants, demurred to the bill setting up the following grounds: “1. The bill does not set forth facts sufficient to warrant relief to the plaintiff named in the bill of complaint. 2. The allegations contained in paragraphs 7 and 8 of the bill of complaint are vague, indefinite, and inadequate. They do not specifically or sufficiently set forth facts as to enable the defendant Albert L. Paeff to be clearly
The evidence is not reported but the judge made a report of the material facts found by him, which may be summed up as follows: Prior to October 16, 1942, the plaintiff was the owner of all the shares of stock in the H. J. Baker Corporation, a wood manufacturing concern. He advertised the business for sale. The defendant Albert responded, suggesting that he could oversee the business and that it would be an excellent opportunity for his son Irving and the plaintiff’s ;son Leslie. On October 16, 1942,-the plaintiff transferred one half of the shares of stock to his son and the other half to the defendant Irving. The defendant Albert was the real purchaser. The plaintiff received $2,000 in cash, a note for $5,500 payable in three years and certain .accounts receivable as consideration for the transfer of the stock. Subsequently the defendant Albert, becoming concerned about the health of the plaintiff’s son, suggested to the plaintiff that his son sell his stock to him (Albert). In
A final decree was entered by order of the judge establishing the indebtedness of the defendants Paeff to the plaintiff in the sum of $7,036.65 (which sum includes $6,300 remaining to be paid on the note and interest, including interest from the date of the bill), providing that, if those defendants did not pay this sum with costs within twenty days from the date of the decree one Simon Queen, as commissioner, be appointed to sell all the property, right, title and interest, legal, or equitable, which those defendants had at the time of the service of the bill on them, in shares of stock in Davenport-Brown Inc. and the machinery and equipment of the American Furniture Manufacturing Co., described in the bill as American Wood Products Manufacturing Co., and ordering that those defendants execute and deliver a written conveyance of all their right, title, and interest in the said shares of stock, machinery and equipment to the purchaser at said sale. The final decree also provided that the proceeds of said sale be applied, first, to pay the costs and expenses of said sale including the fees of the commissioner, and, second, to pay $7,036.65 with costs
The defendants Paeff contend that the final decree establishing the indebtedness of the defendant Albert is not supported by the facts found, arguing that no consideration was shown for the note given by him upon the surrender of the previous note and that the plaintiff was not a holder in due course of the note in suit. They also contend that the findings do not support a conclusion that the defendant Albert was the owner of the shares of stock ordered to be applied to the indebtedness on the note, and that the findings are not sufficient to establish that the machinery in question was fraudulently transferred by him.
Since the evidence is not reported, we can interfere with the judge’s ultimate findings only if his subsidiary findings are actually inconsistent with his ultimate findings, so that in law they cannot stand together. Colby v. Callahan, 311 Mass. 727, 729. In the instant case the judge, after reciting the facts concerning the execution of the note in suit, specifically found that the result of the agreement entered into in connection therewith was that, in consideration of the sale and of the surrender of a note previously given by the defendant Albert to the plaintiff, Albert executed the note “sued on.” General Laws (Ter. Ed.) c. 107, § 47, provides that “Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration, and every person whose signature appears thereon to have become a party thereto for value.” Where, as here, a promissory note contains the words “for value received,” these words are prima facie evidence of consideration, Chaltas v. Chronis, 261 Mass. 221, 224; and where, as here, the plaintiff produces the note and the defendant admits his signature, a prima facie case is made for the plaintiff, Starks v. O’Hara, 266 Mass. 310, 314; Worcester Bank & Trust Co. v. Holbrook, 287 Mass. 228, and the burden of proving want of consideration rests upon the defendant. Leonard v. Woodward, 305 Mass. 332, 335-338. The spe
We perceive no error in the decision of the judge. We cannot review the finding of the judge that the defendant Albert was the owner of the shares of stock of Davenport-Brown Inc. It is an express finding that is not inconsistent with any other of his findings and so must stand. The contention that the relief granted to the plaintiff with respect to the machinery in the possession of the American Furniture Manufacturing Co. could not be granted on the facts found, since that company was not a party to the bill, cannot be sustained. The judge found that it was the same company as that described in the bill as the “American Wood. Products Manufacturing Co.,” that in fact that company was the “American Furniture Manufacturing Co.”
Interlocutory decree affirmed.
Final decree affirmed with costs.