106 Mass. 559 | Mass. | 1871
The answer put the plaintiff to the proof of every fact necessary to the maintenance of the action. One fact to be proved was the organization or corporate existence of the plaintiff. There was some evidence upon that point, but it was not conclusive, so as to enable the court to determine it as a matter of law. The notes were not made payable to the bank as a party. The bank is mentioned only as the place of payment. That does not necessarily indicate a corporation established under that name.
In ordering a verdict for the plaintiff, the court, no doubt inadvertently, overlooked this question of fact, which, upon the evidence in the case, the burden being upon the plaintiff to establish it, must necessarily be submitted to the jury.
Exceptions sustained.
