273 Mass. 573 | Mass. | 1931
This is an action of contract brought against Robert L. Ryder and Charles W. Ryder on a promissory note for $20,000, dated March 18, 1929, and payable to Morris Rudnick six months after date, purporting to have been made by the defendant Robert L. Ryder, indorsed in blank by the defendant Charles W. Ryder, “Waiving demand notice and protest,” and indorsed in blank also by Morris Rudnick and “E. S. Company, Inc. Morris Rudnick, Treas.” The declaration alleges that the defendant Charles W. Ryder indorsed the note on March 18, 1929, that on. its due date it was protested for nonpayment and
. We consider only the exceptions argued or briefed by the defendants, others being treated as waived. Adams v. Hannah, 266 Mass. 101, 105. Guinan v. Famous Players-Lasky Corp. 267 Mass. 501, 519, 521, and cases cited.
First. It was not error to refuse to rule, as requested by the defendants, that “ When testimony warranting a finding that the note in suit was negotiated in breach of faith by the payee has been introduced, the burden of proof is then upon the plaintiff to show that he is a holder in due course.” This requested ruling did not state the law correctly. Under the statute the holder of a negotiable instrument “ is deemed prima facie to be a holder in due course” and no further burden rests upon him “to prove that he or some person under whom he claims acquired the title as holder in due course ” unless “ it is shown that the title of . . . [some] person who has negotiated the instrument was defective” (G. L. c. 107, § 82), which may be done by showing that the payee negotiated it “in breach of faith.” G. L. c. 107, § 78. Defective
Second. It was not error to refuse to" rule that “ If it was understood or was a course of dealing between the plaintiff and the payee of the note in suit that, if the note was not paid at maturity by the defendants in this case the account of the payee was to be charged, then the plaintiff is not a holder in due course.” A right in the plaintiff to charge the account of the payee was not necessarily inconsistent with the plaintiff’s being a holder of the note in due course. It was not inconsistent with the plaintiff’s having acquired title to the note for value, as distinguished from being the agent of the payee for its collection. As to this distinction, see Salem Elevator Works, Inc. v. Commissioner of Banks, 252 Mass. 366, 370, 371. A holder in due course of a note indorsed in blank without qualification ordinarily has a right of recourse to the indorser if the note is not paid at maturity. If this plaintiff, by reason of an understanding or “ course of dealing ” with the payee-indorser, had the right upon
Third. There was no prejudicial error in the exclusion of testimony. The plaintiff’s president was asked: (1) “Now I will ask you whether or not the Beacon Trust Company is indifferent to the outcome of this suit?” (2) “ It is Mr. Rudnick’s note which he controls, and the suit here is brought in the name of the Beacon Trust Company for his use, is it not?” and (3) “ The suit here is brought in the name of the Beacon Trust Company for the use of Mr. Rudnick, is it not?” The questions were excluded, subject to the exceptions of the defendants, who offered to prove that the answer to each question would be “Yes.” The first question was not material to any issue in the case. Indifference on the part of the plaintiff as to the outcome of this action would not tend to show that it was not a holder of the note in due course. Such indifference might result from a consciousness that there was a good indorser. The other questions were answered in substance when the witness testified that “the note belongs to the bank.”
Exceptions overruled.