245 Mass. 321 | Mass. | 1923
When the commissioner of banks took possession under the liquidation statute on February 17,1921, the Tremont Trust Company held eleven notes made by Meyer Abramson; ten for $600 each and one for $439.84, dated January 26, 1921, and payable one each succeeding two months. The bank held also a note of Meyer Abramson of the same date for $5,000, payable in four months, and indorsed by his brother Samuel Abramson, the defendant. On March 28, 1921, the balance in the deposit account of said Meyer was $3,448.42. At his request this sum was credited on the $5,000 note by Earl C. Fowler, an employee of the bank commissioner’s office, no liquidating agent having been yet appointed. It was found by the jury in answer to a special question submitted to them by the trial judge that when this deposit balance was credited on the note, the defendant (who accompanied his brother) was informed “ that the application of the deposit was not absolute and final, but was subject to the approval of the bank commissioner or his representative.” There was evidence also that this information was given in accordance with the instructions imparted to all his employees by one Otis, who was assistant director of the trust company division of the bank commissioner’s office and was in charge of the bank. On learning of the credit made on the note, Otis crossed out the indorsement of $3,448.42 and returned to Meyer Abram-son his check. He also informed the defendant that he felt
1. We cannot say there was error in admitting evidence that Meyer Abramson was adjudicated a bankrupt December 22,1921. It tended to show a pecuniary interest on the part of the defendant, who as indorser would have no recourse in fact against a bankrupt maker: and to that extent it affected his credibility as a witness. He testified, among other things, that Fowler did not tell him that the credit on the note was being made conditionally, subject to the approval of the commissioner of banks or his liquidating agent, later to be appointed. See Israel v. Baker, 170 Mass. 12.
2. There was an offer to show that a similar application of deposits was made on notes of two other depositors, without any declaration by Fowler that the application was in any way conditional. The evidence had no connection with this transaction, and the presiding judge may well have thought it would involve the trial of collateral issues. Its exclusion was not erroneous.
3. The requested,instructions numbered 2, 6 and 8 were denied rightly. The second was disposed of by the finding of the jury that the credit of $3,448.42 was accepted only conditionally. The sixth and eighth raised questions not open to this defendant. Meyer Abramson, the maker of the note, in an action against him, might perhaps question the right of the commissioner, who was liquidating the business of the trust company, to apply his deposit to his unsecured notes; thus preserving for creditors the benefit of the security on the indorsed note; see, however, Prudential Realty Co. v. Commissioner of Banks in re Prudential Trust Co. 241 Mass. 277. But" this defendant had no title or interest in the deposit, and could not insist on setting it off against the note. Bachrach v. Commissioner of Banks, 239 Mass. 272. He admitted his signature as indorser. The only defence set up in his answer was that of payment. The burden was on him to prove such payment, in whole or in part: and he failed to do so.
Finally, the charge of the trial judge as to the effect of the receipt was correct; although it was rendered practically
Exceptions overruled.