165 Mass. 450 | Mass. | 1896
This is an action brought by the plaintiff as indorsee of a promissory note against the defendant as maker.
This suggestion of the defendant’s counsel assumed, what apparently had been proved beyond a reasonable doubt, that the plaintiff sent the payee of the note the check in question. The question upon which the ruling was asked was whether there was affirmative evidence to warrant a finding that the check was sent as a remittance of the amount collected from the defendant as maker of another note of the same amount which became due a short time before the check was sent. There was no testimony in support of this proposition of the defendant, and the only two witnesses who had knowledge about it testified positively to the contrary. There were cir
Our only difficulty in the case arises from the fact that the judge and the counsel on both sides seem to have assumed that the burden was on the defendant to show that the plaintiff was not a bona fide holder of the note for value before maturity. On the contrary, it was proper for the defendant to introduce evidence that the note was obtained by fraud; and if he established that proposition, he made out his defence, unless the plaintiff showed affirmatively that he was a bona fide holder who was not affected by the fraud. Sullivan v. Langley, 120 Mass. 437. Merchants’ National Bank v. Haverhill Iron Works, 159 Mass. 158. The question whether the jury, in view of the character of the testimony of the plaintiff and his witness on cross-examination, would have found it proved that the plaintiff was a bona fide holder of the note for value before maturity, is very different from the question whether they could have found affirmatively on the evidence that the check was sent as a remittance of the proceeds of another note. But the question in regard to the burden of proof was not raised by the defendant at the trial; and it is fair to assume that, if it had been raised, it would have been carefully considered and correctly decided. We do not know what the evidence of fraud would have been, nor does it seem probable that the plaintiff would have failed to establish his title by a verdict if the jury had been carefully instructed in regard to the burden of proof. We are therefore of opinion that we cannot properly sustain the exceptions on this part of the case.
There are two questions of evidence presented by the bill. In cross-examination the defendant introduced, without objection, evidence of entries upon a bank-book of the payee of the
In connection with the cross-examination of the first witness, the defendant offered three notes similar to the one sued on, which matured earlier. When they were offered, nothing appeared to indicate that they had any connection with the questions in issue. Afterwards, when the case was further developed, it appeared that they might be considered collaterally, in connection with other evidence, upon the question whether the plaintiff and his witness testified truly in regard to the purchase of the note in suit. But no offer was afterwards made to introduce them, and if they had been introduced they would have shown nothing more than was testified to orally and assumed to be true by the judge in dealing with the question finally passed upon. We are of opinion that the exclusion of the bank-book and the notes did the defendant no injustice.
Exceptions overruled.