| Mass. | May 24, 1933
This is an action of contract brought to recover on a promissory note for $3,500 signed by the defendant and payable to the order of the plaintiff. “It was agreed between the parties that if the defendant was liable, the balance due, including interest on the note in suit up to May 5, 1932, (the time of the trial) was $1,688.25.” The case was tried'to a jury. “The jury returned a verdict for the defendant, but before the verdict was recorded the court reserved leave to enter a different verdict, and later the court directed that a verdict be entered for the plaintiff in the sum of $1,688.25.” “The defendant duly saved an exception to this act . . . and to the direction of the verdict for the plaintiff.” The bill
The pertinent facts are as follows: The plaintiff, hereinafter called the bank, was a national bank engaged in business in Woburn, Massachusetts, and the defendant was a salesman employed by The Osborne Company, dealing in calendar advertising. The defendant, the only witness in the case, was called by the plaintiff and testified that the signature on the note in suit was his signature; that said note was never in his possession, unless placing it before him to sign was in his possession; that after signing the note it was left at the bank; that he had known the cashier of the bank, one Alden, for two or three years prior to February 9, 1929, the date the note was signed; that he had also known one Anderson for about two years prior to said date; that several months before February 9, 1929, he had a conversation with Alden and told him he had a friend who would like to get a loan on a second mortgage, and that Alden said: “Well, why don’t you send him in to see me?” He further testified that he brought Anderson into the bank, introduced him to Alden and left him with him; that thereafter he was called to the bank, and told by Alden that he wanted him to sign the note (Exhibit 1); that he asked Alden why he should sign it and Alden replied that the bank could not lend on a second mortgage and in order for the bank to overcome that a straw would have to be used and that Alden asked him, “Wouldn't you be willing to be a straw” and he asked Alden what it meant and Alden said, “We would look for the indorsers on the back of that note, and the property for the collection,” that the defendant would not be responsible; that after the talk with Alden he signed the note in suit, and simultaneously with his execution of the note he indorsed a cashier’s check for $500 dated February 9, 1929, payable to him; that at the same time he indorsed another check, for $3,000, also payable to him; that those checks were never in his possession; that the check for $500 was taken by the cashier after the indorsement and the check of $3,000 was given by the cashier after indorse
The plaintiff duly objected to any testimony regarding conversatiori at and prior to the signing of the note and delivery of the checks which tended to vary the terms of the note. The issues raised by the defendant are “that the note was without consideration, and was executed for the accommodation of the bank, with an agreement that the bank would not look to the defendant for payment, and that the entire transaction was consummated by the plaintiff in the manner above stated for the purpose of avoiding the national banking laws prohibiting loans on second mortgages.”
In an action upon a negotiable promissory note by the payee against the maker, paroi evidence is admissible to show want of consideration, whether a party is an accommodation party, and also which party he accommodated. Wolff v. Perkins, 254 Mass. 10" court="Mass." date_filed="1925-11-24" href="https://app.midpage.ai/document/wolff-v-perkins-6437254?utm_source=webapp" opinion_id="6437254">254 Mass. 10. G. L. (Ter. Ed.) c. 107, § 52, reads: “An accommodation party is one who has signed the instrument as maker, .drawer, acceptor or endorser, without receiving value therefor, and for the purpose of lending his name to some other person.^ Such a person is liable on the instrument to a holder in due course, notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party.” The instant case is governed by Neal v. Wilson, 213 Mass. 336" court="Mass." date_filed="1913-01-28" href="https://app.midpage.ai/document/neal-v-wilson-6432029?utm_source=webapp" opinion_id="6432029">213 Mass. 336, wherein the defendant at the solicitation of the cashier of the plaintiff bank, without any consideration, gave his check to the bank to make good an overdraft of a customer of the bank. It was there held that the defendant was liable to the bank though its cashier knew that the defendant received no consideration for the check; it was further held, on the facts, that the customer, not the bank, was the party accommodated. International Trust Co. v. Wattendorf, 256 Mass. 323" court="Mass." date_filed="1926-06-04" href="https://app.midpage.ai/document/international-trust-co-v-wattendorf-6437596?utm_source=webapp" opinion_id="6437596">256 Mass. 323. German American State Bank v. Wat
Exceptions overruled.