161 Mass. 80 | Mass. | 1894
1. The defendant does not now contend that a presiding justice has no power to order a verdict if the jury have returned their findings upon questions submitted to them, but have separated without arriving at a verdict. Such a course is warranted by the doctrine that, although a jury have separated, they may be ordered to correct an incomplete and defective finding when the circumstances are such as to make it certain that justice is done by the order. Mason v. Massa, 122 Mass. 477, and cases cited. Spencer v. Williams, 160 Mass. 17. When the law applied to the findings made by the jury, and to the evidence applicable to the remaining issues, gives to one party or the other, as matter of law, a clear right to a verdict, the jury
2. If, as the defendant contends, the court had declined to permit the jury to consider the form of the notes upon the question whether the plaintiff should be charged with notice that there was an agreement between Cassells and the defendant limiting Cassells’s authority to borrow money for the firm to loans on notes payable to and indorsed by the defendant, such a ruling would have been wrong. As we construe the bill of exceptions the jury were permitted to consider the form of the notes, in connection with all the evidence, but were in effect also instructed that the form of the notes was not, as matter of law, conclusive upon the question. The defendant requested the court to instruct the jury that the form of the notes “ was notice to the plaintiff,” and that it “ gave notice to the plaintiff.” This would have been in substance a ruling that the form of the notes was, as matter of law, conclusive in favor of the defendant upon the question, and would have been contrary to the authorities. The true rule was that the jury might consider the form of the notes in connection with all the other evidence in determining the question whether they should in fact charge the plaintiff with notice of a limitation of the authority of Cassells to borrow money for his firm. Atlas National Bank v. Savery, 127 Mass. 75, 77. Freeman’s National Bank v. Savery, 127 Mass. 75. Thompson v. Hale, 6 Pick. 258. Wait v. Thayer, 118 Mass. 473, 478. In National Bank of the Commonwealth v. Law, 127 Mass. 72, the defendants’ indorsement being above that of the payee’s made it apparent in the light of St. 1874, c. 404, that their liability was conditional and secondary, and therefore, prima fade at least, for the accommodation of the maker. In that case the inference was made necessary by the effect of the statute; but the decision has no bearing in support of the defendant’s contention that the
In our opinion the ruling given did not withdraw the form of the notes from the consideration of the jury. The notes were in evidence, and the instruction could not have been understood to withdraw them from the jury, but merely to declare that they did not show or indicate notice conclusively or as matter, of law.
3. The only remaining contention argued by the defendant is, that the court finally withdrew from the jury the question whether the plaintiff should be charged with actual or constructive notice of Cassells’s fraud. The jury had found that in fact the plaintiff had no knowledge or notice of the limitation of Cassells’s authority, nor that he was then acting as an agent of the defendant, and not as a member of the firm. The remaining evidence applicable to the question was not sufficient to warrant a finding that the plaintiff did not take the notes and advance the money to the firm in good faith. There was no dispute that the plaintiff took the notes before maturity and for value. The evidence that Graham, its president, had noticed unusual facts about the bank account, indicating that the firm was not doing a flourishing business, that he had seen Cassells the worse for liquor and had thought of writing to the defendant about him, that he had notified Cassells on account of these things that lie would not discount for him to the extent he had been doing, and that he knew that the defendant was in business at Fitchburg