249 Mass. 294 | Mass. | 1924
The first action is in contract brought to recover upon a promissory note for $25,000, payable to the order of the plaintiff, made by the Suffield-Berlin Trap Rock Company and indorsed by the defendants. It was tried with the other, an action of contract or tort, for fraudulently inducing Maynard to indorse the note. The trial judge, stating that the same results could be obtained by submitting only the first case to the jury, directed a verdict for the defendant in the second one, subject to Maynard’s exception. In the main case the jury returned a verdict for the Finance Corporation (herein referred to as the plaintiff), in the sum of $15,900.
The defendant Maynard was eighty-two and Bradley was
It is settled by the verdict that the indorsements of the defendants were secured by promises of Morton B. Howard to take up the three outstanding notes. The plaintiff contends, however, that Howard was not authorized as the plaintiff’s agent to make such an agreement. As bearing on the scope of his authority, there was the following evidence: The note in suit was payable “ at 580 Mass. Ave. Cambridge [the plaintiff’s office] or Norris Howard Co. 145 State St.,” which was in Springfield. Morton B. Howard was the treasurer of this company, and Forris W. Norris was its president, and was also treasurer of the plaintiff Finance Corporation. Howard testified that the Norris-Howard Company was agent of the plaintiff corporation “ In some things.” A prior note of the Trap Rock Company to the plaintiff (dated October 25, 1919), was made payable at the office of the plaintiff in Cambridge “ or its agents, the Norris-Howard Company, § 145 State Street, Springfield.” The plaintiff sent the proceeds of the note in suit direct to Norris-Howard Company; and that company, through its treasurer Howard, disbursed the proceeds, applying $15,000 to the
The further question is raised by the motion for a directed verdict, whether the failure of the plaintiff’s agent to take up the two outstanding $5,000 notes can be availed of in the present action, under the defence of partial failure of consideration. The defendants have duly set up this defence. G. L. c. 107, § 51. And the plaintiff is not in the position of a holder in due course because the jury must have found that Howard, who promised to take up the notes, was acting as its agent. Undoubtedly the default of the plaintiff in the performance of what it was to do, in exchange for their indorsements, gave them a right of action. As matter of justice, the party in default ought not to be permitted to compel them to pay the entire note and then resort to further litigation, if that can be avoided. This is not a case of want of consideration; the original independent promise of the defendants presumably supplied that, as in the cases relied upon by the plaintiff. See Waterhouse v. Kendall, 11 Cush. 128; Traver v. Stevens, 11 Cush. 167; Hubon v. Park, 116 Mass. 541; Hapgood v. Wellington, 136 Mass. 217; Turner v. Rogers, 121 Mass. 12. In Black v. Ridgway, 131 Mass. 80, the consideration for a note was an assignment of an interest in the agency of a certain light company, and an agreement by the plaintiff to purchase all his gas from Ridgway, the maker of the note; and it appeared that the plaintiff violated this agreement. At the trial of an action on the note the jury were instructed that “ if the consideration has partially failed, to the extent of the failure thereof it is a defence to the note, and the deduction must be made therefrom.” The note was for $300, and the jury returned a verdict for $249.
The plaintiff filed numerous requests for instructions to the jury. What has been said disposes of many, such as those numbered. 1, 2, 3, 13, 14. Others are immaterial on the narrow issue of partial failure of consideration, on which the present action was tried. So far as the requests dealt
In view of the statement in the brief of Maynard and Bradley that they do not press their exceptions in the event that the exceptions of the finance corporation should be overruled, we do not consider them. In each case the entry must be
Exceptions overruled.