| Me. | Sep 20, 1943
We are concerned here with two actions brought by different plaintiffs against the same defendant to recover on two promissory notes. In each case an exception was taken to the refusal of the presiding justice to direct a verdict for the plaintiff, and after a verdict for the defendant a general motion for a new trial was filed in each. By filing these motions the plaintiffs waived their exceptions as both the exceptions and the motions raise the same issue. We shall therefore consider only the motions.
Each note was made payable to Maurice L. Diamond and Mabel S. Early and for the same principal sum, $2,925.00, although this circumstance happens to be a mere coincidence. In the action brought by Herman the note was dated February 7, 1942 and was payable May 10, 1942 at the Federal Trust Company of Waterville, Me. In the other case the note was dated March 10,1942 and was due May 15,1942. In all other respects it was similar to the first. The notes were endorsed by the payees and by one Sam Diamond, a brother of Maurice, and were held by the respective plaintiffs as endorsees of Sam Diamond. The defendant does not deny having signed the notes but claims that her signature in each instance was obtained by fraud of which the endorsee, Sam Diamond, and likewise the plaintiffs had notice. It is set forth in the defendant’s amended brief statement in the Herman case that Maurice L. Diamond and Mabel S. Early in May, 1941, persuaded the defendant to make a loan of $5,000.00 to a corporation known as Stewart’s Inc. of which they were respectively the president
The allegations in the brief statement with respect to the second note dated March 10, 1942 are identical.
The defendant was a widow who appears to have been possessed of a considerable amount of spare money and spare time both of which seem to have been used very unwisely. She had spent several winters in St. Petersburg, Florida. There she met Maurice Diamond and Mabel Early who conducted a diamond auction business under the name of Stewart’s Inc. She had a friend by the name of William Ferguson, who was a guest at the hotel. The defendant, Ferguson, Diamond, and Mabel Early were much in each other’s company. Diamond and Mabel Early invited them to dinners, took them out for automobile rides, and all four went to the dog races together. There were dances, birthday parties and New Year parties. Ferguson testified that he regarded Diamond as a fine man and still thought so at the time of the trial. Out of all these hours spent in inconsequential fun making their relationship became so close that Ferguson finally came to regard Diamond “just like a brother.” During the daytime when the
The defendant had the burden of establishing by clear and convincing proof that her signature on each of the notes in question was obtained by fraud. Portland Morris Plan Bank v. Winckler, 127 Me., 306, 143 A., 173" court="Me." date_filed="1928-09-19" href="https://app.midpage.ai/document/portland-morris-plan-bank-v-winckler-4939996?utm_source=webapp" opinion_id="4939996">143 A., 173. The jury has decided that she has sustained that burden. The question before this court on the'general motions is whether that finding is clearly and manifestly wrong. If it is, all discussion as to whether the plaintiffs were holders in due course becomes superfluous.
The claim of the defendant, apparently with respect to the Herman note, is not that any trick was practiced on her by which one piece of paper was substituted for another when she signed. Although this particular allegation was set up in the brief statement, it was abandoned when she was called on to testify. She testified that after her successful bid for the jewelry, Maurice Diamond asked her to go into the back room
“N. P. 62658
1-30
$2925.00 February 7th., 194®
On May the 10th. 194® after date I promise to pay to the order of Maurice L. Diamond and Mabel S. Early
Twenty nine hundred & twenty-five & . . . . No/100 Dollars
at The Federal Trust Co., of Waterville, Maine.
Value received
Nettie A. Greene
No. Due 5/10/4®”
She appears as the maker of a promissory note which she now says she had no intention of signing and was not supposed to sign. Realizing that some explanation was necessary under the circumstances, she put forth several versions of what happened, each, unfortunately for her, inconsistent with the other. In the first place she said that she signed merely a blank piece of paper, apparently intending to imply that she left it with Maurice Diamond to fill in and that he wrote in a promise on her part to pay money instead of an acknowledgment of a payment of money received by her. But this theory of what occurred had to be discarded by her when she was faced with the note which we now have before us. Obviously she did not sign a blank piece of paper. The words “after date,” “promise to pay to the order of,” “Dollars at,” and “Value received” as well as “No.” and “Due” at the bottom were printed. It was the ordinary printed form of a promissory note used in com
The defendant had little conception of the value of money
Counsel argue that the evidence is conflicting as to what took place at the time the notes were signed. The conflict is; between the testimony of Sain Diamond and the defendant: Sam Diamond says that he was in the room when the notes were signed and that Mrs. Greene discussed the terms of at least one of the notes with Maurice Diamond before she signed it and mentioned the bank at which it should be made payable. But the fact that there is a conflict in the evidence does not make out a case, if the testimony on which a party relies is itself incredible. We can utterly disregard Sam Diamond’s testimony and still the defendant fails.
Counsel for the defendant also calls our attention to Mrs. Greene’s testimony that, after the second purchase when she came out of the back office with Maurice Diamond, he said to Mrs. Early: “We have Mrs. Greene almost paid up.” If there were some independent, credible evidence that Mrs. Greene had signed a receipt or was led to believe by Diamond that she had done so, this evidence might carry some weight as corroboration. But without that, it proves nothing and is not necessarily inconsistent with the theory that Mrs. Greene signed a note which was to be used as a set-off against the note of Stewart’s Inc. held by her.
There is an analogy between this case and Strout v. Lewis, 104 Me., 65, 71 A., 137" court="Me." date_filed="1908-03-04" href="https://app.midpage.ai/document/strout-v-lewis-4937185?utm_source=webapp" opinion_id="4937185">71 A., 137. The action there was assumpsit on a written contract the terms of which were filled in on a printed form. The defense was that the defendant had been induced to sign it by the plaintiff representing to her that it was in fact something different from what its provisions expressed. The
Regardless of any conflict between the defendant’s testimony and that of Sam Diamond and of the fact that neither Maurice Diamond nor Mrs. Early saw fit to testify, the burden was still on the defendant to prove fraud by evidence which it is possible to believe. We have nothing on the point but her own testimony. She gives us one version one minute and when faced with facts which cannot be controverted offers another explanation utterly inconsistent with the first, and neither of which can be accepted by reasonable men or women. This case as well as Strout v. Lewis, supra, show us that there are limits beyond which a jury may not go to save people from the consequences of their own folly. The verdicts are clearly and manifestly wrong.
Motions sustained.
New trials granted.