317 Mass. 70 | Mass. | 1944
This action of contract by the indorsee of a promissory note is to recover a balance of principal and interest. The note, dated June 10, 1926, provided in part, "I Stanislaw Grubliauskas, Guardian, Promise to pay to Federal National Bank of Boston, or order . . . the sum of Thirty-five hundred ($3500.) Dollars in one (1) year from, this date.” It was signed, "Stanislaw Grubliauskas, Guardian,” and was witnessed. In the margin appeared,
The evidence showed that the mortgage referred to in the margin of the note was given by “Stanislaw Grubli-auskas, Guardian of Sophie Akston, also called Sophie Mes-cionis, and Mary. Pankofsky, also called Mary Mescionis ... by the power conferred- by the Probate Court for the County of Suffolk on June 10, 1926.” The decree of the Probate Court so referred to in part read, “On the petition of Stanislau[w] Grubliauskas guardian of Sophie Akston, also called Sophie Mescionis and Mary Pau[n]kofsky, also called Mary Mescionis, both of Boston, in said County, minors, praying for authority to mortgage the following described real estate of his wards ... it appearing that it is necessary and expedient to raise the sum of Thirty-five hundred dollars for the purpose of discharging two mortgages amounting to thirty-five hundred dollars ... it is decreed, that said guardian be authorized to mortgage . . . said wards’ interest in said real estate.” The note after maturity was indorsed without recourse to the plaintiff by the receiver of the bank as part of a sale of assets.
The plaintiff’s requests numbered 1 and 2 were respectively that upon all the facts and upon all the law the plaintiff was entitled to recover. These could not be granted. The question whether the court should order a verdict must be raised by motion and not by a request for instructions. Rule 71 of the Superior Court (1932). Carp v. Kaplan, 251 Mass. 225. Sullivan v. Ward, 304 Mass. 614, 616.
The third .request was: “A guardian is personally liable
The remaining request was almost verbatim a quotation of G. L. (Ter. Ed.) c. 107, § 40. It was inapplicable to the issues and properly denied. Holmes v. Sullivan, 241 Mass. 195, 196. Bianchi v. Denholm & McKay Co. 302 Mass. 469, 472.
Exceptions overruled.