282 Mass. 94 | Mass. | 1933
This is an action of contract brought in the Municipal Court by the payee of a promissory note against the indorser. There was a finding for the plaintiff, a report to the Appellate Division which was dismissed, and an appeal by the defendant from the order dismissing such report. The report sets out the defendant’s requests for rulings, the disposition thereof by the trial judge, all the evidence material to the questions reported, and the specific findings of the judge.
It is not contended before us that the plaintiff, if she was a holder of the note in due course, is not entitled to recover thereon against the indorser. G. L. (Ter. Ed.) c. 107, § 80. A finding that the plaintiff was a holder in due course was warranted.
The judge found in substance — and the findings are supported by evidence — that the maker signed the note without inserting the name of any payee, that the defendant, at the request of the maker, indorsed it when it was in that condition and delivered it to the maker, to whom the defendant owed the amount of the note, and that thereafter the maker inserted the name of the plaintiff as payee and delivered the note to the plaintiff before its maturity for value complete and regular upon its face. The fact that the plaintiff was the payee of the note does not prevent her from being a holder in due course. Russell v. Bond & Goodwin, Inc. 276 Mass. 458, 463, and cases cited.
On the findings above set forth the plaintiff was a holder of the note in due course if she took it in good faith and without “notice of any infirmity in the instrument or defect in the title” of the maker, who negotiated it to her. G. L. (Ter. Ed.) c. 107, § 75.
Since it could have been found that the note was indorsed and delivered by the defendant to the maker and that the maker had authority to negotiate it to the plaintiff, it could have been inferred that the maker had authority to complete the note by filling in the name of the plaintiff as payee and that, consequently, there was no infirmity in the instrument. G. L. (Ter. Ed.) c. 107, § 36. Liberty Trust Co. v. Tilton, 217 Mass. 462, 463.
• If there was no infirmity in the instrument or defect in the maker’s title thereto, obviously there could be no notice
The rulings as to the burden of proof and the effect of knowledge by the plaintiff that the note when indorsed by the defendant did not contain the name of any payee, requested by the defendant and made by the judge, to which no objection was made by the plaintiff, need not be discussed. See, however, G. L. (Ter. Ed.) c. 107, §§ 36, 47, 49, 52, 78, 79, 82; Farber v. Sackett, 255 Mass. 569; Beacon Trust Co. v. Ryder, 273 Mass. 573, 575-576; Russell v. Bond & Goodwin, Inc. 276 Mass. 458, 463-464. These rulings were sufficiently favorable to the defendant and, even if regarded as the law of the trial (see Tompkins v. Quaker Oats Co. 239 Mass. 147, 150), would not compel a finding for him on the evidence.
It follows that there was no error in the refusal of the judge "to rule, as requested by the defendant, that “Upon all the evidence the plaintiff is not entitled to recover,” and “Upon all the law the plaintiff is not entitled to recover.” Nor was there error in his refusal to make other rulings requested, since they assumed facts not found by him or were based upon a part of the evidence. Smith v. Import Drug Co. 253 Mass. 368, 371.
Order dismissing report affirmed.