296 Mass. 267 | Mass. | 1936
This case, begun as a bill in equity, inserted in a writ, to reach and apply property under G. L. (Ter. Ed.) c. 214, § 3 (7) (8), comes here on exceptions taken at the trial by jury of issues relating to the liability of the defendants Ida Bixby and Louis H. Bixby to the plaintiff upon two notes for $5,062.50 each, given by these defendants on December 14, 1925, payable to the order of the Coral Gables Corporation, and representing the greater part of the purchase price of land at Coral Gables in Florida. The notes were indorsed after maturity by that corporation to the plaintiff, and consequently are subject in the hands of the plaintiff to any defences existing against the payee. G. L. (Ter. Ed.) c. 107, § 75, cl. 2; § 81. The defence is that the notes were procured by the false and fraudulent representations of the payee.
The judge, subject to the exception of the defendants, directed the jury to answer the issues by finding that the defendants owed the plaintiff $19,761.42 upon the notes. The defendants took numerous exceptions to the exclusion of evidence. After the disposition of the jury issues, a final decree was entered in favor of the plaintiff, and these defendants appealed.
The trial of the jury issues was loosely conducted, so far as the saving of exceptions was concerned. After the exclusion of comparatively narrow questions to witnesses, counsel for the defendants made offers of proof going far beyond the scope of the questions. Ordinarily such an offer of proof has effect only so far as the facts stated
The nearest approach to evidence of value or damage was contained in an offer of proof made upon the exclusion of the following question to the son of the defendants who was not shown to be competent to express an opinion as to the value of real estate in Coral Gables: “Will you state everything that Mr. Atkinson [an alleged salesman for the payee] said to you and your father in your presence before the time of the signing and the payment of the money and the signing of these notes.” The offer of proof occupies two pages of the printed record. It contains not only representations attributed to Atkinson, but also assertions of their falsity, an assertion that the payee did not keep its promises and did not intend to keep them, an assertion that the witness communicated the representations to his mother, and an assertion that she relied upon them in
The only ground of attack upon the decree, not already discussed, is that the basis of equity jurisdiction has ceased to exist. The bill alleged that the defendants Beerman, Ruby and McLaughlin, later- grantees of the Florida land, made an agreement with the defendants Ida Bixby and Louis H. Bixby to pay the notes in question, and that the defendants Ida Bixby and Louis H. Bixby are the owners of stock in a corporation called Bixby Club Plan, Inc.. The bill sought to reach these assets of the Bixbys. The attempt to hold Beerman, Ruby and McLaughlin was abandoned during the progress of the suit. Louis H. Bixby admitted owning two shares of stock in the corporation named. As to him the jurisdiction in equity was perfect. Ida Bixby was found to own no such stock. Neither of these defendants set up in the answer any want of equity jurisdiction, but both went to trial by jury upon the issues of the existence and amount of the debt. Without considering other possible answers (Carleton & Hovey Co. v. Burns, 285 Mass. 479, 486), these facts show that there was no error in entering a final decree on the merits. Adams v. Silverman, 280 Mass. 23. Potier v. A. W. Perry,
Exceptions overruled.
Decree affirmed with costs.