227 Mass. 29 | Mass. | 1917
This is a petition to establish exceptions. The relevant facts are that the case was tried before a judge of the
At the time these events occurred, there having been then no rule of court touching the subject, exception must have been taken within a reasonable time to a ruling made in the absence of counsel in connection with the trial of a case before a judge without a jury. Hurley v. Boston Elevated Railway, 213 Mass. 192. What is a reasonable time must depend upon the circumstances. In the case at bar, since the notice of the decision was sent by mail and was received in due course, the time of its receipt must be taken as the starting point. That point of time is indicated by R. L. c. 173, § 106, and St. 1911, c. 212. There is nothing to show that notices were not usually sent. Since a bald notice of decision only was sent, it was proper and doubtless necessary for the defendant’s attorney to ascertain whether the judge had
The making of a decision in favor of the plaintiffs, without passing upon the defendant’s requests for rulings, was a denial of all such requests as were relevant and inconsistent with the decision. John Hetherington & Sons, Ltd. v. William Firth Co. 210 Mass. 8, 18, 19.
The action is by the holders against the indorser to recover the amount of the face of a promissory note given on time. The second of the requests of the defendant thus denied was that “There was no presentment for payment on the proper day either at the residence or place of business of the maker of the note.” In order to recover of the indorser it was necessary for the plaintiffs to prove that demand of payment Avas made upon the maker on the day of maturity of the note. It is not contended that the case is within the exceptions mentioned in R. L. c. 73, § 132. Neither the place of payment nor the address of the maker Avas
The case is not aided on this point by the further evidence that, before the date of the note, which was six months before the attempted demand, “this man had been a great many times” to the store of the plaintiffs “to buy provisions for the Davidsons,”
Evidence was admitted against the exception of the defendant to the effect that the plaintiffs asked the man who came from the stable about the Davidsons and he answered that Mr. and Mrs. Davidson had gone to Boston and would be back, he thought, about six o’clock, and that he “was in charge.” This evidence doubtless was admitted to show that the maker of the note was “absent or inaccessible” within R. L. c. 73, § 89, cl. 4. But it was not competent for this purpose. The man’s bald assertion made out of court and in the maker’s absence that he was acting as agent for the maker, ought not to have been received. Haney v. Donnelly, 12 Gray, 361. That being out of the case, there was nothing to show that he had any relation to the maker. While his own testimony, if called as a witness, might have been competent to show where the maker was, the repetition in court of what he said was the merest hearsay.
It cannot be said that these errors of law did the defendant no harm. For aught that appears, the judge may have found that there was a sufficient demand, since he denied a request for the second ruling, which was a correct statement of the law.
It is not necessary to determine whether the evidence of a promise to pay made by the defendant after the due day of the note, Glidden v. Chamberlin, 167 Mass. 486, 494, showed that the promise was made under such circumstances of knowledge of the material facts as to justify a finding of waiver of demand. Parks v. Smith, 155 Mass. 26, 33. No finding was made upon this point and the evidence may not be the same at another trial.
The other questions argued need not be considered.
Petition for establishment of exceptions allowed.
Exceptions sustained.