Everett Trust Co. v. Morris

262 Mass. 422 | Mass. | 1928

Sanderson, J.

This is an action of contract to recover upon two promissory notes made by H. W. Peckham and payable to the order of Nellie R. Peckham; they were indorsed by her, and also by the defendant as an accommodation indorser for the maker. The plaintiff discounted the notes before maturity and paid their face value to the maker. Due demand for payment, notice of nonpayment, and the genuineness of the signature of the defendant were admitted. Subject to the plaintiff’s exception, the defendant testified that he had a conversation with the plaintiff’s treasurer at the time of the transactions to the effect that the financial standing of Nellie R. Peckham was such that the responsibility of the defendant would be less in case the maker failed to pay the notes, and that in this talk reference was made to the fact that the payee was the wife of the maker of the notes. In cross-examination the defendant testified in substance that he did not know when affixing his signature to these notes that the bank was extending credit to Mr. Peckham relying in part upon his (the defendant’s) signature.

At the conclusion of the evidence the judge, subject to the defendant’s exception, ordered struck out the evidence with reference to what was said at the time the notes were signed. The defendant also saved an exception to the refusal of the judge to allow his motion for a directed verdict, and to the allowance of the plaintiff’s motion that a verdict be directed in its favor.

The defendant contends that the evidence struck out was admissible to show the conditions under which the defendant signed the notes, and also that the plaintiff was not a holder in due course and that the defendant was not liable on his indorsement. The fact that each note was made payable to the order of the maker’s wife and indorsed by her created no infirmity in the note in so far as the defendant’s liability or the plaintiff’s rights are concerned. Kenworthy v. Sawyer, 125 Mass. 28, 29. Binney v. Globe National Bank, 150 Mass. 574, 578. Prescott National Bank v. Butler, 157 Mass. 548, 550. The evidence struck out had no tendency to prove lack of good faith on the part of the plaintiff, nor that it had notice of any infirmity in the instrument or defect in the title of the person negotiating the notes (see G. L. c. 107, § 75), nor any agreement or understanding between the plaintiff and the defendant which would relieve the defendant from liability as an indorser. The knowledge on the part of the plaintiff that the defendant was an accommodation indorser would not affect its rights to recover on the notes as a holder in due course. Kenworthy v. Sawyer, supra. Before the evidence struck out was introduced, the defendant had saved exceptions to the exclusion of questions asking for conversations between the defendant and the plaintiff’s treasurer. No offer of proof was made, and it does not appear that the defendant was prejudiced by the rulings on these questions. The plaintiff, being a holder in due course, is not concerned with defences available to prior parties to the instrument among themselves. G. L. c. 107, § 80. The ruling directing the jury to return a verdict for the plaintiff was right. Questions not argued are treated as waived.

Exceptions overruled.