288 Mass. 83 | Mass. | 1934
The defendants on the morning of December 13,1931, by the hands of a third party, delivered to the plaintiff at his home in Sutton, Massachusetts, a check dated December 10,1931, drawn by the defendants on the Bancroft Trust Company at Worcester and payable to the order of the
The check upon which suit has been brought was delivered to the plaintiff on a Sunday and the defendants have argued before us that the plaintiff should not have been permitted to recover because of the fact of the violation of the statute which prohibits the transaction of business on the Lord’s Day. G. L. (Ter. Ed.) c. 136. The defence of illegality was not pleaded by the defendants and is therefore not now open to them as of right. Raymond v. Phipps, 215 Mass. 559. Furthermore, it would appear that the question was not presented by the defendants at' the trial in the District Court. At any rate there was no general request by the defendants for a ruling that the plaintiff was not entitled to recover and none of the requests for rulings there made by them has any reference to illegality of the contract which is expressed by the check. For that reason, as well, the defendants are not entitled to have that question considered on review. Reid v. Doherty, 273 Mass. 388. Caruso v. Shelit, 282 Mass. 196. Segal v. Allied Mutuals Liability Ins. Co. 285 Mass. 106. If the matter were properly before us on the report, the failure of the trial judge of his own accord to inject the defence of illegality could not have been held to be reversible error.
The plaintiff is the “holder” (G. L. [Ter. Ed.] c. 107, § 18) of the check on which he has brought suit. His right to sue thereon (G. L. [Ter. Ed.] c. 107, § 74) is not affected because the details of the arrangement with the savings bank whereby he reacquired possession of it do not appear in the record. Newell v. Rosenberg, 275 Mass. 455, 460. We are not here concerned with the question of fraud, as to which there is no evidence and no contention by the defendants, or with the question of illegality which is not now open to them. The title under which the plaintiff held the instrument at the time he brought suit was derived through the savings bank which had paid him its face value and had taken it with his indorsement and thereby became a holder in due course. G. L. (Ter. Ed.) c. 107, §§ 75, 80. The plaintiff upon reacquisition of the check having derived title from such a source, not being a party to any fraud or to any illegality of which the defendants may now take advantage, “has all the rights of such former holder in respect of all parties prior to the latter.” G. L. (Ter. Ed.) c. 107, § 81. Among the rights possessed by the savings bank as a holder in due course was the right to receive payment of the check upon presentation for payment within a reasonable time after its delivery. G. L. (Ter. Ed.) c. 107, § 209. To this right of the savings bank, the source of the plaintiff’s present title, he has succeeded.
The defendants would be discharged from liability as drawers to the extent of any loss suffered by them which was caused by delay in the presentation of the check for payment if it were not presented within a reasonable time after its issue, G. L. (Ter. Ed.) c. 107, § 209, that is, within a reasonable time after its delivery to the plaintiff (§ 18). The statutory rule for the determination of what is a reasonable time, providing that “regard is to be had to the nature of the instrument, the usage of trade or business, if any, with respect to such instruments, and the facts of the particular case” (§ 20), is in substance the common law rule. Seager v. Dauphinee, 284 Mass. 96. By our decisions, in
The matter of the presentment of the check for payment in the circumstances of this case has significance not because that step was necessary in order to create a liability on the part of the defendants, who as makers had become parties primarily liable on the instrument (§ 93), but because if the check should not be presented for payment within a reasonable time after its issue the defendants to the extent of a resultant loss, if any, would be discharged from their already existing liability. Inasmuch as the trial judge might properly have found that, before a reasonable time after the issuance of the check had elapsed, the doors of the bank had been closed, and that within the balance of such reasonable time no presentment could have been made, the fact that no presentment was ever made is of no consequence (§ 105). The conclusion that loss to the defendants did not result from delay in the presentment of the check for an unreasonable time was warranted. The savings bank, a holder in due course, acquired the right to recover on the check and that right now rests in the plaintiff.
Order dismissing report affirmed.