Perley v. Perley

144 Mass. 104 | Mass. | 1887

DeVees, J.

While the burden of proof in an action upon a promissory note, as between the original parties, is upon the promisee to establish the fact that it was given for a valuable consideration, the production of the note and proof “of the defendant’s signature establish a prima facie case which entitles the plaintiff to a verdict. But the burden of proving a consideration still remains upon the plaintiff, notwithstanding this presumption, and, if there is any evidence in the case on this point on behalf of the defendant, the plaintiff must show, by a preponderance of the whole evidence, that the note was given for a valuable consideration. Burnham v. Allen, 1 Gray, 496. Morris v. Bowman, 12 Gray, 467. Simpson v. Davis, 119 Mass. 269.

Where a party having the burden of proof has given competent prima facie evidence of consideration, and the adverse party seeks to meet it, not by producing proof that would negative this proposition, but by establishing another and distinct proposition, the burden of proving the latter proposition is upon him. Powers v. Russell, 13 Pick. 69, 76. Thus, if the defendant should seek to meet the prima facie case made by the production of the note by evidence of payment, the burden would be upon him to show it. So, if the defendant should seek to avoid his promise by proof that it was to be defeated by the occurrence of a certain contingency, it would be for him to establish this, and also the fact that such contingency had occurred. Gray v. Gardner, 17 Mass. 188. Thayer v. Connor, 5 Allen, 25. But evidence on behalf of the defendant may distinctly meet and tend to disprove the evidence of consideration of the plaintiff, even if it also tends to establish an entirely different state of facts from that on which the plaintiff seeks to base his proof of consideration. In such case, the effect of proof of cohsideration by the plaintiff is not avoided, but is met and encountered; and, even if the evidence of the defendant tends to establish a different proposition from that asserted by the plaintiff, it is still for the plaintiff to sustain the burden which rests upon him of proving the consideration, and not for the defendant to show that it does not exist, by satisfying the jury that his own proposition is correct. The evidence in the case supposed applies to the affirmative or negative of the same issue.

The defendant in the case at bar offered evidence directly tending to show that the money delivered to him by the plaintiff was delivered to him as a gift from his father. He accounted or sought to account for the fact that a note was given for it, by evidence that it was uncertain whether this sum or a portion of it would not be needed by the plaintiff, who was his brother and his father’s administrator, for the payment of the father’s debts, in which case the defendant was to refund. This met directly the prima facie case of the plaintiff on the matter of consideration, and showed, if believed, that there was none, unless certainly the contingency that it would be wanted for the payment of debts had occurred, of which there was no evidence. The defendant had not sought to prove independent facts which avoided the contract, or relieved him from its obligation; he had' met the plaintiff’s prima facie evidence of consideration, and it was for the plaintiff still to satisfy the judge that a valuable consideration existed.

The plaintiff’s own testimony was, that he had lent this money to the defendant as his own, using for that purpose money which had been given him by his father with which he was to pay certain debts, &c., retaining the balance to his own use.

The plaintiff’s contention suggests also, that the defendant sought to rely upon a failure of consideration, and thus that tire burden of proof was upon him. It may be conceded that, where there has been a good consideration, which consideration has wholly or partially failed, the burden of proving such failure is upon the party setting it up. Jennison v. Stafford, 1 Cush. 168. Delano v. Bartlett, 6 Cush. 364. Simpson v. Davis, ubi supra. The case at bar presents no circumstances for the application of this principle. If the defendant had received the $1000 as a loan, there was no pretence that he had ever paid it; if he had received it as his own, given to him by his father through the hands of the plaintiff, subject to the condition that he should repay it, or such part of it as might be necessary for the payment of the father’s debts, &c., the note being a memorandum only, there was no evidence or suggestion that it was needed for this purpose. The case was rightly put as presenting the inquiry whether the defendant had received this money as a loan-, or as his own, and as requiring the plaintiff to establish the proposition upon which he relied, namely, that it' was a loan.

The case of Delano v. Bartlett, ubi supra, which has often been cited with approval, strongly resembles that at bar. The defendant, who had pleaded want of consideration, there offered evidence that the sum received by him was his own money, and paid to him by the plaintiff, supposing the defendant to be entitled to it; but, as it depended on the settlement of certain partnership affairs whether he was so entitled, the note was given upon the understanding that, if it appeared that he was not entitled to it, the plaintiff might then call for the money due thereon, and that in fact the whole sum belonged to him. The plaintiff requested the court to instruct the jury, that the defendant must show the want of consideration. But the defendant having produced evidence tending to overcome the plaintiff’s prima faeie case, and the proof on both sides being applicable to the same issue of consideration, it was held that the jury were properly instructed that the burden of proof was throughout on the plaintiff to satisfy the jury, upon the whole evidence, of the consideration of the note.

For these reasons a majority of the court are of opinion that the entry must be, jExceptions overruled.