207 Mass. 52 | Mass. | 1910
The plaintiff corporation at the times here in question carried on the business of a wholesale grocer, and the defendant corporation kept a restaurant. The plaintiff sold groceries to the defendant from the defendant’s organization on September 1, 1908, until July 3, 1909. On May 1, 1909, there was a balance due from the defendant to the plaintiff of $157.04. The treasurer of the plaintiff corporation testified that “ this amount was paid by check of defendant for $157.04 on June 1, 1909, which check was sent by defendant to pay this specific amount.”
Between May 1, 1909, and July 3, 1909, the plaintiff sold and delivered to the defendant groceries of the value of $243.56, and this action was brought to recover that sum for those goods.
It was admitted that the defendant owed the plaintiff this sum for those goods “ unless the facts hereinafter set forth constitute a defense.”
“ The facts hereinafter set forth ” are these: Before September 1, 1908, one Longley had kept the restaurant afterwards kept by the defendant corporation and owed the plaintiff $233.04, for groceries sold by it to him. The defendant corporation was formed to succeed and did succeed to Longley’s business and “ Longley became its treasurer.” On September 23, October 23 and October 30, 1908, Longley sent to the plaintiff checks of the defendant corporation for $81.94, $107.16 and $43.94, with directions to apply them on his individual account, and they were so applied. These checks were signed in behalf of the defendant corporation by Longley as treasurer, and were payable to the
The plaintiff declared on an account annexed and the defendant pleaded a general denial and payment.
At the trial before a judge
The defendant asked for twenty-one rulings,
“ I find that the plaintiff, in receiving these checks and applying the same in payment of Charles S. Longley’s individual indebtedness, acted in good faith, and that the plaintiff had no knowledge as to the conditions of affairs between said Charles S. Longley and the defendant. There was no evidence showing or tending to show that said Longley acted wrongfully in sending these checks on his own personal account unless said wrongful conduct is to be implied from the form of checks and the fact of the issuance of, and the delivery of the same, in payment of his individual indebtedness.
“ The defendant claims that these checks were improperly ap
“No evidence was offered except as herein set forth, as to the circumstances attending the drawing of these checks, or as to the financial or other relations of said Longley with the defendant, except that he was its treasurer.
“I find for the plaintiff in the sum of two hundred and forty-three dollars and fifty-six cents ($243.56) with interest from the date of the writ.”
The case is here on' exceptions taken to the “ finding and rulings ” and to the “ refusal to find and rule.”
By adopting the defendant’s requests for rulings which he did adopt, the judge in effect ruled that under the circumstances of the present case the plaintiff would have been bound to credit all payments made from the funds of the defendant corporation to the account of the defendant, unless that corporation authorized them to be credited to the treasurer’s personal account, had it not been for the question of the plaintiff’s being a bona fide purchaser for value without notice of the three checks by which these payments were made. And by refusing the requests which he refused, the judge ruled in effect that if the plaintiff was a bona fide purchaser for value without notice it was not necessary to come to a decision on the corporation’s consent to the money here in question being applied to pay the individual debt of the treasurer. This was followed by his finding that the plaintiff was a bona tide purchaser for value without notice of the three checks.
It would seem that the finding made by the judge was an error. The checks in the case at bar being payable directly to the plaintiff would seem to bring the case within Newburyport v. Fidelity Ins. Co. 197 Mass. 596, J. G. Brill Co. v. Norton & Taunton Street Railway, 189 Mass. 431, Freeman’s National Bank v. Savery, 127 Mass. 75, and National Park Bank v. German-American Mutual Warehousing & Security Co. 116 N. Y. 281, and not within National Bank of Commonwealth v. Law, 127 Mass. 72, Fillebrown v. Hayward, 190 Mass. 472, and Feigenspan
If the rights of the parties to this action depended upon the plaintiff’s right to retain the money received by it on these checks, we should be inclined to hold, for the reasons given above, that the exceptions would have to be sustained. But we are of opinion that this question was not in issue in this case, and consequently that the defendant is not aggrieved by the error of the judge on this *»int, if there was an error in that connection on his part.
The issues raised by the pleadings in the case at bar were two, and two only, namely: (1) Did the defendant originally owe the
This point has been insisted upon by the plaintiff in this court. It does not directly appear that it was raised at the trial. The fact that the plaintiff excepted to the admission in evidence of the three checks here in question leads us to think that it may have been raised there. But however that may be,
Exceptions overruled.
Jenney, J.
So much of the substance of these requests for rulings as is material to the decision is given in the statement in the opinion on page 55 as to the effect of the rulings by the trial judge.