172 Mass. 538 | Mass. | 1899
The action is replevin, and the'plaintiff was required to show that he had the right to, the possession of the property taken upon the writ. He was the general owner of the property, and the defendant relied upon a mortgage which purported to have been made by the plaintiff to one Moody, who had assigned it to the defendant. The course of the trial is not very clearly disclosed by the bill of exceptions. It is stated that the plaintiff made a prima facie case and rested. It would
The descriptive clause of the mortgage, as produced at the trial, contained before the printed words above stated the written words: “ 1st, One Norris upright piano, No. 5045; Plush parlor suit; Tap. Carpet; Cherry Centre Table; Hanging Lamp ; Marble Clock; Mantel Mirror; Four Pictures; Range and ware; Crockery, glass and Silver plated ware”; and the first blank in the printed portion of the descriptive clause was filled with the name of the mortgagee, and the remaining blanks with words which designated the plaintiff’s dwelling as the place in which the mortgaged property was contained.
The bill of exceptions does not state whether the defendant rested his case upon the production of the mortgage, his own testimony relating thereto, and the production of the four receipts given by him to the plaintiff for payments of interest made after notice of the assignment to the defendant. It does state that it was claimed by the plaintiff, and it seems a fair inference that this contention was made in that part of the trial commonly called the rebuttal, that there had been a material alteration of the mortgage since he signed it, and that the defendant knew of the alteration before the mortgage was assigned to
At the end of the trial four questions were submitted to the jury and answered by them, from which it appears that the jury found that there w7as an alteration of the mortgage after it was executed, the alteration consisting of the writing in of the words, “ Plush parlor suit; Tap. Carpet; Cherry Centre Table; Hanging Lamp; Marble Clock; Mantel Mirror; Four Pictures; Range and ware ; Crockery, glass and Silver plated ware ” ; that the plaintiff signed the mortgage in blank, with an understanding that Moody was to fill the blanks; and that Moody filled the blanks in violation of what was understood and agreed, that violation being the insertion of the words last quoted, and that the defendant had knowledge of this alteration before or at the time of the assignment to himself.
The bill of exceptions does not purport to contain any statement of instructions requested or given to the jury, and it is to be assumed that the questions which were submitted to the jury and answered were upon issues as to which the parties were contending at the trial, and that they were properly left to the jury and under correct rulings and instructions. The only question which the bill of exceptions presents for our decision is whether certain questions put to the plaintiff, when under direct examination as a witness, were improperly allowed, the defendant having objected to them, and saved his exception to their allowance. It was suggested by counsel at the argument that some of these questions were in fact put to the witness by the court, but it is not so stated in the bill, and we assume that they were asked by the plaintiff’s counsel. The plaintiff seems to have testified, without objection, that he signed the mortgage and mortgage note in blank at his house, to which Moody brought them to be signed, and that there was no writing on the mortgage fir the note when the plaintiff signed them, and that he did not read the printed matter because he was in a hurry. The bill of exceptions next states that the plaintiff was further questioned, under the defendant’s objection and exception, and states at length sixteen questions and their answers, so that it appears that the only error which the defendant can urge to sustain his bill is the admission of these questions to the plaintiff.
His first contention is that the questions were leading in form. But the bill of exceptions does not show that the questions were objected to for form, and the contention is not now open to the defendant.
The substance of the testimony given by the plaintiff, in response to the questions admitted under exception, was that at the interview when the mortgage was signed in blank Moody said that he would have it filled out, and the plaintiff expected him to do so; that what was said as to what should be written in was said by Moody, and that it was that he had no claim on anything but one upright piano, and that while it was not said in explicit words that Moody might write in the words “one upright piano,” the plaintiff expected him to write in words to make the mortgage cover a piano and nothing else; and further that the amount then due Moody was about thirty-five dollars, according to certain receipts. .
When, as in the present instance, it is for a jury to determine first whether an instrument upon which the rights of the parties depend was in fact executed and delivered in blank, with the understanding and intention that the blanks should be filled up by the party to whom it was so delivered, and further whether that party has so exceeded the authority impliedly given him to fill out the blanks as to render the instrument void as against its maker, the situation of the parties, and all that was said at the time when the implied authority was given, are relevant and competent.
Furthermore, it is competent for one who holds or claims under a document so made and delivered to contend that one who has intrusted a blank document bearing his signature to another person with the expectation that the latter will fill the blanks is estopped from repudiating the insertion in the blanks
So far as the bill of exceptions enables us to understand the issues which were pending before the jury, we think that, in the attitude which the trial had then assumed, the evidence given under the defendant’s exception was competent in some aspects of the case. Exceptions overruled.