259 Mass. 100 | Mass. | 1927
This is an action of contract brought on a promissory note dated August 19, 1921, alleged to have been signed by the defendant, payable to the order of the Anglo-American Brewery, Inc., and by it indorsed to the plaintiff.
At the trial it was admitted, or evidenced by undisputed testimony, that the defendant executed the note in suit on the day of its date and delivered it to one Marshall to be used by him in promoting or carrying on the Anglo-American' Brewery company; that when the note was executed the company was in process of organization but was not chartered until September 3,1921; that sometime after September 3, 1921, the note was indorsed, “Pay to the order of H. W. Patton The Anglo-American Brewery, Inc. L. E. Chester, Treas. H. W. Patton.” It further appeared that the treasurer, Louis E. Chester, had authority under section 1, article V, of the by-laws to indorse on behalf of the company checks, notes and other obligations; that after he had indorsed the note he handed it to Marshall and “then he and Mr. Marshall walked immediately into Mr. Patton’s office and Mr. Marshall gave it to Mr. Patton in his presence.” No question is raised but that Patton thereafter advanced money to Marshall which was used by Marshall in promoting the corporation between the dates of September 9 and November 22, 1921.
The payee was a fictitious person, and the instrument was negotiable without indorsement if such nonexistence was known to the maker of the note. G. L. c. 107, § 31 (3). The evidence, to the effect that the defendant about the time
The request to rule that “Upon all the evidence, the plaintiff is not entitled to recover” was denied rightly. To pass upon such a request other than to deny it would be to violate Common Law Rule 44 of the Superior Court (1923) which requires that “The question whether the court should order a verdict must be raised by a motion. Such question shall not be raised by a request for instructions to the jury.” Carp v. Kaplan, 251 Mass. 225. DeMarco v. Pease, 253 Mass. 499. Altman v. Goodman, 255 Mass. 41. Floccher v. Sirianni, 256 Mass. 210. Taylor v. Creeley, 257 Mass. 21.
The ruling was right if the case be considered on its merits for the reasons above stated, and because a motion in writing for a directed verdict cannot be sustained if the evidence was sufficient in any legal form of declaring to justify a finding for the plaintiff in any amount. Rubin v. Huhn, 229 Mass. 126,129.
The requests “Upon the evidence, the plaintiff is not a holder in due course,” and “If the jury find that one R. C. Marshall was acting as a promoter and organizer of the Anglo-American Brewery, Inc., in behalf of the plaintiff and the other incorporators of the Anglo-American Brewery, Inc., then the Anglo-American Brewery, Inc., and the plaintiff and the other incorporators are bound by the knowledge of said Marshall of all the infirmities of the note involved in this action,” upon the reported facts above recited were refused rightly.
Should the fact be that the note was indorsed to the plaintiff while the named payee was nonexistent, that fact on the evidence should not prevent a recovery on the note as on a note payable to bearer, and the declaration may be amended to conform to the fact.
Exceptions overruled.
