Fletcher v. Sturtevant

235 Mass. 249 | Mass. | 1920

Braley, J.

The two promissory notes in suit, payable on demand, are signed on the face by the defendant L. J. Sturtevant, and on the back by R. M. Sturtevant, who alone defends and to whom reference will be made as the defendant.

It was decided in Union Bank of Weymouth v. Willis, 8 Met. 504, that where, as in the case at bar, the defendant before delivery signs on the back of the note, he is a joint and several maker or promisor, and in Allen v. Brown, 124 Mass. 77, that paroi evidence is inadmissible to show that this was not the real contract. But St. 1874, c. 404, Pub. Sts. c. 77, § 15, required notice of non-payment to all persons becoming parties to promissory notes payable on time by a signature in blank on the back thereof, the same as if they were indorsers. A promissory note payable on demand however is not within the statute, Hitchings v. Edmands, 132 Mass. 338, and the defendant would not have the rights of an indorser, nor could he be considered as such, if it were not for St. 1898, c. 533, § 63, now R. L. c. 73, § 80, in force when the notes were given, which provides that “A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity.” Brooks v. Stackpole, 168 Mass. 537. Toole v. Crafts, 193 Mass. 110, 111.

But, even if he is treated as maker, the notes were payable at once, and, more than six years having elapsed before the action was begun, the statute of limitations, R. L. c. 202, § 14, would be a bar, as the partial payments made by L. J. Sturtevant which interrupted the running of the statute as to him, were not binding on the defendant. Fenno v. Gay, 146 Mass. 118. Peirce v. Tobey, 5 Met. 168. Balcom v. Richards, 6 Cush. 360. Faulkner v. Bailey, 123 Mass. 588. If he is deemed an indorser, it is conceded that no notice of non-payment was ever given or demand for payment made before bringing suit.

The trial judge therefore rightly refused to give the plaintiff’s requests, and, no error appearing in his rulings, that the defendant is not a co-maker but an indorser, and that as to him the action is barred by the statute of limitations, the order dismissing the report should be affirmed.

So ordered.