Levison v. Lavalle, 243 Mass. 47

243 Mass. 47 | Mass. | 1922

Jenney, J.

This is an action upon a promissory note made by the defendant and payable to the order of W. H. Miner, whose; indorsement it bears. The answer so far as material contains a general denial, a special denial of the defendant’s signature, and an allegation of payment. It also sets forth that the defendant was induced to make the note “because of the false and fraudulent representations of the payee, all of which were well known to the plaintiffs,” as to whom it is averred they are not holders “for value in due course or before . . . maturity,” and that the note, which was without consideration and for the accommodation of the payee, had been pledged by him to the plaintiffs as collateral security for his note which has been paid. The answer does not include the defence that the note has been delivered under an agreement restricting its negotiation and that there has been a violation of that agreement, or more generally, that the note has been wrongfully put in circulation. Such a defence must be specially pleaded. Hunting v. Downer, 151 Mass. 275. Lewiston Trust & Safe Deposit Co. v. Shackford, 213 Mass. 432. Whitman v. Fournier, 228 Mass. 93. G. L. c. 107, §§ 38, 79,82. See Braman, Neg. Instr. Law Annotated, 60. However, as a new trial must be had and as the answer may be amended, the ease is considered on the footing that that defence was open.

The note was admitted in evidence without objection. The defendant, who was called by the plaintiffs as a witness, testified that he had signed and delivered it to the-payee. As the signa-" turc of the payee was not denied, it required no proof. Lowell v. Bickford, 201 Mass. 543. Whiddon v. Sprague, 203 Mass. 526. Dean v. Vice, 234 Mass. 13. The defendant testified on examination in his own behalf that the note was given without consideration for the accommodation of the payee; that he told the payee to get it discounted by the Metropolitan Trust Company and if that could not be done to return the note to him as he did not want it hawked around, and that this was agreed to by the payee.

The plaintiffs’ exception to the admission of this evidence must be overruled. The evidence was competent because it related to what transpired when the note was given. Moreover, it was admissible for the purpose of showing that the note was without consideration. "When it was admitted, it could not have been assumed that evidence might not be offered to show that the plaintiff was not a holder in due course. Produce Exchange Trust Co. v. Bieberbach, 176 Mass. 577. Lewiston Trust & Safe Deposit Co. v. Shackford, supra.

At the conclusion of this evidence, the plaintiffs rested, and, subject to their exception, a verdict was ordered for the defendant.

It is urged that this was right because, where evidence is offered that a note was obtained or put in circulation by fraud, or in violation of an agreement that it should not be delivered except upon a definite contingency, the plaintiff must show that he took it for value in good faith and before its maturity. Smith v. Livingston, 111 Mass. 342. Merchants’ National Bank of Lowell v. Haverhill Iron Works, 159 Mass. 158. National Revere Bank v. Morse, 163 Mass. 383. Holden v. Phœnix Rattan Co. 168 Mass. 570, 572. Demelman v. Brazier, 198 Mass. 458. Merchants National Bank v. Marden, Orth & Hastings Co. 234 Mass. 161, 169. G. L. c. 107, §§ 38, 82. But the evidence did not tend to prove that the note was obtained with intent to use it in violation of the promise to return it unless it was discounted by the trust company, assuming that such a representation was not merely promissory. Moreover there was no evidence that the note was not in fact sold to the trust company, and that the plaintiffs did not claim under it. Hence the case is not governed by the principle stated. Notwithstanding the evidence of the defendant, G. L. c. 107, § 75, and the first sentence of § 82 were applicable.

The exceptions must be sustained.

So ordered.