260 Mass. 449 | Mass. | 1927
This is an action of contract on a promissory note signed by the defendant as maker, the tenor of which in so far as material is as follows:
“$15,000.00. Boston, May 23, 1924.
Six months after date I promise to pay to the order of Thomas F. Curley . . . Fifteen Thousand and /100 . . . Dollars. At the Beacon Trust Company, Boston, Mass. Value received. . . .
William J. Barry,
Address: 431 Ashland Street,
Roslindale. ”
It was indorsed “Thomas F. Curley, 40 Court St.”
The trial judge at the close of the evidence ordered a verdict for the plaintiff, and at the request of the defendant reported the case. If the ruling was right, judgment is to be entered for the amount of the note with interest from its date. If it was wrong, the case is to stand for trial.
The burden of proof was on the plaintiff throughout the trial to show that it was a holder in due course. But, the defendant not having denied his signature, the note was prima facie sufficient to support the action. G. L. c. 107, §§ 74, 82. Merchants National Bank v. Marden, Orth & Hastings Co. 234 Mass. 161, 169. The answer however avers that the note was procured by the false and fraudulent representations of the payee from whom the defendant received no value, and that the plaintiff was not a holder for value and in good faith.
It could be found on the evidence introduced by the defendant that the defendant was induced to give the note on the promise and assurance of Curley that he would obtain from the plaintiff certain securities, and deliver them to the defendant to secure its payment. These securities consisted of a lease, and bill of sale of machinery held by the plaintiff as collateral security for money lent to the Murray Engineering Company of which Curley was treasurer. The evidence tended to show and the jury could find that the defendant was told by Curley, that the plaintiff was pressing him
If Curley had retained the note he could not at maturity have maintained an action against Barry. G. L. c. 107, § 52. See Fillebrown v. Hayward, 190 Mass. 472. Goodman
The defendant’s contention that the case should have been submitted to the jury fails, and judgment is to be entered for the plaintiff in accordance with the terms of the report.
So ordered.