L. Grossman Sons, Inc. v. Rudderham

319 Mass. 698 | Mass. | 1946

Lummus, J.

The plaintiff, the payee of a promissory note, obtained a finding in an action against the maker, and the Appellate Division dismissed a report. The note bore the signature as an attesting witness of one Palmer, a former employee of the plaintiff corporation, who died long before the trial. The defence was that the note was altered after its execution by the unauthorized addition of the signature of Palmer as a witness. Mindell v. Goldman, 309 Mass. 472, 474.

The fact that Palmer undertook to sign as an attesting witness warranted the inference that he did so regularly and properly with the knowledge of the defendant after she had signed or acknowledged the note in his presence. Leatherbee v. Leatherbee, 247 Mass. 138. See also Swazey v. Allen, 115 Mass. 594; Phillips v. Vorenberg, 259 Mass. 46, 68; Alpert v. Radner, 293 Mass. 109, 112; Barletta v. New York, New Haven & Hartford Railroad, 297 Mass. 275, 277; Moroni v. Brawders, 317 Mass. 48, 55, 56; Epstein v. Boston Housing Authority, 317 Mass. 297, 301. Other evidence tended to support such an inference.

But the contrary conclusion was equally warranted upon the direct testimony of the defendant and her father that they never knew Palmer and that he had nothing to do with the execution of the note. The conflicting evidence presented a question of fact which the trial judge could decide either way. Hobart-Farrell Plumbing & Heating Co. v. Klayman, 302 Mass. 508.

It was, therefore, plainly erroneous for the trial judge to refuse the ruling requested by the defendant that "there is sufficient evidence to warrant the court to make a finding for the defendant.” That refusal implied an erroneous ruling that the law required a finding for the plaintiff.

Requests of this sort, for a ruling that the evidence warrants a finding in favor of the party making the request, were first recognized as logically proper in Bresnick v. Heath, 292 Mass. 293, decided in 1935, and at once came into common use. Ever since they have caused inexplicable confusion in many minds. Careful and repeated exposition has not availed to prevent blunders in dealing with them. United States Fidelity & Guaranty Co. v. Sheehan, 308 Mass. 321, 323, 324. Dangelo v. Farina, 310 Mass. 758. Rummel v. Peters, 314 Mass. 504, 517, 518. Hoffman v. Chelsea, 315 Mass. 54. Liberatore v. Framingham, 315 Mass. 538, 541, 542. The trap set by such a request is perilous to the unwary but easy to avoid.

Sometimes an error in denying such a request has been rendered harmless by the fact that the judge failed to act upon his own ruling, but considered the question of fact upon all the evidence and arrived at a conclusion independently of his erroneous ruling. Perry v. Hanover, 314 Mass. 167. Lyons v. Hennessey, 314 Mass. 359. Rummel v. Peters, 314 Mass. 504, 518. Cournoyer v. Holyoke, 314 Mass. 604. Brodeur v. Seymour, 315 Mass. 527. Liberatore v. Framingham, 315 Mass. 538. Quinby v. Boston & Maine Railroad, 318 Mass. 438, 446. In the present case the Appellate Division thought the error harmless under this principle. But we think it not clear that the general finding for the plaintiff was not affected by the erroneous ruling that the plaintiff was entitled to recover as matter of law.

Order dismissing report reversed.

New trial ordered.