245 Mass. 137 | Mass. | 1923
This is an action of tort for the conversion of an automobile. The contention of the defendants at the trial was that they sold the automobile to one Greenfield on a contract of conditional sale or lease, in which title was reserved in them until the entire purchase price was paid, and that the last instalment on the purchase price not being paid on May 25, 1920, as stipulated, they repossessed themselves of their property. Greenfield testified that he agreed with the defendants to pay them $150 on January 16, 1920, in full payment of the balance due on the car, and offered in evidence the check of a third person of that date, payable to the order of the defendants, bearing the indorsement, “ A. Berger & Son, by David Berger.” Over the indorsement was written acknowledgment of receipt of the check in full payment of the automobile and releasing Greenfield from further liability. The check was admitted in evidence although Greenfield testified that he did not know the signature of the indorsers. Whether there was error need not be considered, because the defendant David Berger, later called as a witness, admitted the genuineness of the indorsement although denying that the statement above the indorsement was there at the time of the indorsement. In this there was no error.
Checks indorsed by the defendants after the trial in the district court, offered for the purpose of showing the customary place of indorsement by the defendants, rightly were excluded. Self-serving acts of the defendants were inadmissible. Moreover, the customary place of indorse-
The comment of the presiding judge on the failure of one of the defendants to find certain information at the records of the State highway department, to the effect that it might have been because of “ denseness ” rather than “ searching ” cannot be said on this record to have been error. It was part of a colloquy between court and counsel during the presentation of evidence. Partelow v. Newton & Boston Street Railway, 196 Mass. 24, 31, to 34. This subject also does not appear to have been relevant to any issue.
Exceptions overruled.
