220 Mass. 600 | Mass. | 1915
The makers and indorser of the notes having been joined as defendants, it is conceded that as to the makers, who have been defaulted, the plaintiff is a holder for value; and it would not avail the indorser who alone defends, that with the plaintiff’s knowledge he became bound for their accommodation. R. L. c. 73, § 46. Neal v. Wilson, 213 Mass. 336, 337, and cases cited.
While it was unquestioned that, with the accompanying mortgages, the notes were taken by the plaintiff in payment for the transfer of certain personal property to the makers and mortgagors, the evidence as to their business relations and dealings with the indorser, hereinafter referred to as the defendant, both before and after the transactions, is irreconcilable. The testimony of the plaintiff’s president and of its counsel, who prepared the papers and at whose office they were executed, tended to show that the defendant had in some form a pecuniary interest in the property or that the property had been transferred to the makers at the defendant’s request and he had indorsed to secure the trans
But the defendant testified that at the solicitation of the plaintiff’s president, and wholly for its convenience and accommodation, he consented to the use of his name as a mere conduit to pass title to the plaintiff of the notes as well as to the property named in the mortgages, with the distinct understanding and agreement that he should incur no personal liability.
“As to third parties, the rights and liabilities of an accommodation party are, in general, the same as those of a party receiving valuable consideration for his signature; but between the accommodation party and the person accommodated there is no such liability, and one who draws or indorses commercial paper for the accommodation of another is not liable on it to him, whatever their apparent relation upon the paper may be.” 3 R. C. L. § 336, and cases cited. Bird v. Daggett, 97 Mass. 494.
The credibility of the witnesses was for the jury. If they believed the defendant’s evidence, or if they found the evidence evenly balanced, there was no consideration shown for his promise and he was entitled to a verdict. Lockwood v. Twitchell, 146 Mass. 623. Warren v. Durfee, 126 Mass. 338, 341. Corliss v. Howe, 11 Gray, 125.
The plaintiff’s first, third and fourth requests could not have been given as formulated. The jury were to determine the actual transaction and a verdict for the plaintiff could not have been ordered. The validity of the notes as enforceable contracts against the defendant depended upon proof of a valuable consideration, the absence of which could be shown by paroi evidence, with the burden of proof upon the plaintiff to satisfy the jury that the defendant could be held. Hill v. Whidden, 158 Mass. 267. Delano v. Bartlett, 6 Cush. 364. The first clause of the fifth request, that the notes, mortgages and assignments were part of the same transaction, is sufficiently covered by the instructions; and the remainder of the request, that a consideration moving either to the makers or to the indorser would support the obligation of each, rests upon the plaintiff’s theory that the defendant was liable because at his request the plaintiff had transferred title to the
The exception taken at the close to so much of the charge as failed to make clear to the jury that a valid consideration may have existed, which would bind the indorser without the transfer of any property or of any beneficial interest in property to him, “because it makes no difference whether Gray got any property or . . . any beneficial interest, if the transaction was done at his request,” was not well taken. The charge repeatedly directed the attention of the jury to the respective claims of the parties. They were told plainly that, if the defendant indorsed at the makers’ request, he was liable as well as if the plaintiff transferred the property to the makers at his request, or he had a beneficial interest in the property, and what the plaintiff must prove to hold the defendant on his indorsement was defined with sufficient accuracy. See Arlington National Bank v. Bennett, 214 Mass. 352, 357; Doe v. Boston & Worcester Street Railway, 195 Mass. 168, 172.
The next exception is to certain statements of the judge that the makers never promised to pay the defendant anything, and that the papers themselves threw no light on the questions the jury were to pass upon, or stated the real transaction. It was unquestioned that on the face of the notes the defendant had no defence. But the case was tried, from beginning to end, upon a question of fact, dependent upon extrinsic evidence, whether the contract between the defendant, the makers and the plaintiff was as the plaintiff contended, or whether the defendant acted only at the request and for the..benefit of the plaintiff. The nature of the transactions, to which the judge referred and which he directed the jury to consider, as shown by the context, were the questions raised by their respective contentions.
The further request, apparently proffered after the foregoing exceptions had been alleged, rests upon the assumption that there was a mutual agreement and understanding between the makers and the defendant that the makers should take title to the prop
It is settled that portions of a charge cannot be separated and excepted to, where the charge as a whole, as in the present case, sufficiently states the law applicable to the issues which the parties actually tried. Sayles v. Quinn, 196 Mass. 492, 496. The failure of the jury to adopt the plaintiff’s view cannot be attributed to any fault of the judge and is not an error of law.
A single exception remains to the exclusion -of evidence. To impeach the credibility of the defendant as a witness the plaintiff properly was allowed to introduce in evidence the contradictory statements made by him in the bill in equity, to which he had affixed his signature and made oath. DeMontague v. Bacharach, 187 Mass. 128. But the record of the judgment in the action at law was inadmissible. The defendant’s liability on the notes was not in issue in that case. It was an action to recover a debt alleged to be due from the plaintiff, and in reply to questions of counsel in cross-examination the defendant admitted he had claimed before the action was brought that the debt should be set off against the notes. The plaintiff had the full benefit of this and could ask the jury to draw the inference that the claim of set-off was an admission that he was liable on the notes. The judgment in favor of the defendant which followed the verdict only settled the question there tried. It could not affect the issue in the- case at bar, either by estoppel or as an admission. Maguire v. Pan-American Amusement Co. 211 Mass. 22, 25, 26.
The plaintiff having failed to show affirmatively any reversible error, the exceptions, in the opinion of a majority of the court, must be overruled.
So ordered.