153 Mass. 536 | Mass. | 1891
This is an action upon a witnessed promissory note, brought in the name of the payee by the holder, one Henry M. Hyams. The plaintiff Hyams’s case was, that the
1. The first question is raised by a motion to dismiss the action, founded on an affidavit by the defendant that it was not authorized by Troeder, the nominal plaintiff. An earlier affidavit by Troeder also alleged that he never gave any consideration for the note, and never owned it, but admitted his indorsement. Whether this earlier affidavit was referred to by the motion in question is doubtful at least, and is not very important. The motion was presented after the cause was called for trial, before the impanelling of the jury, and was overruled on the ground that it was presented too late.
If Hyams had a right to use Troeder’s name, and Troeder had attempted to embarrass his recovery by a release, or in some nther way which would present a defence as between the parties to the record, but which would be inequitable as against the real plaintiff, a court of law could and would investigate the matter, although technically it could not be tried upon the record, and either would order the plea to be taken off the files; Innell v. Newman, 4 B. & Ald. 419; Hickey v. Burt, 7 Taunt. 48; Martin v. Tapley, 119 Mass. 116, 117; or would protect the' plaintiff in some less formal way. Jones v. Witter, 13 Mass. 304. Hart v. Western Railroad, 13 Met. 99, 108. Merrill v. New England Ins. Co. 103 Mass. 245, 251. On the other hand, if Troeder had discovered that his name was being used without right, it may be that he would have been entitled to object to it at any stage when he discovered the fact. See Mosher v. Allen, 16 Mass. 451. But in the present case it was neither the beneficial nor the nominal plaintiff who moved the court, but the defendant. If a defendant desires to deny the authority of the attorney of record to bring the suit, he is required by the rules of the Superior Court to take the objection at the first stage. Common Law Rules of Superior Court, Rule XI. It is said that matter such as was relied on here, “ unless it arises puis darrein continuance, cannot avail a defendant after he has
Again, Troeder’s denial that he had authorized the suit, even if conclusive of the fact, was not conclusive against the right of Henry Hyams to maintain it in Troeder’s name, as we shall show in another connection. The other facts alleged in Troeder’s first affidavit went to the merits of the case, and were passed upon by the jury in finding for the plaintiff. Therefore the defendant lost nothing by the refusal to entertain his motion.
2. The next two exceptions are upon questions of evidence. Proof that the attesting witness to the note when last seen was practising law in California, coupled with a return non est inventus upon a subpoena by a constable of Boston, in which city the witness had lived before he went to California, was sufficient to let in secondary evidence that the signature was his. Gelott v. Goodspeed, 8 Cush. 411. Valentine v. Piper, 22 Pick. 85, 90.
3. Evidence was offered by the defendant, but excluded, that for the last ten years he had been in business for himself as a merchant in Boston, first with a partner, then for the greater part of the time without a partner, as bearing on the likelihood that if the plaintiff Hyams had a valid claim against the defendant he would have asserted it before. We understand that there was no dispute that the defendant was in Boston, and was known by the plaintiff to be in Boston. Clark v. Brown, 120 Mass. 206. Thus limited, the defendant’s offer was immaterial. It added nothing to what was established. The fact that the defendant was in business did not amount to evidence that he was well to do, or exclude the suggestion that the plaintiff had not sued because he did not think he could get anything by doing so. Moreover, evidence of the actual and reputed wealth of the defendant has been held inadmissible for purposes similar in principle to those for which this evidence was offered, on the ground that the defendant’s ability to pay when called upon may have
4. Next, as to the instructions requested by the defendant, and refused. Under the instructions given at his request, as was stated at the outset, the jury must have found that the note was made to Troeder upon a consideration moving from him, and that it was transferred afterwards for value to the plaintiff Hyams. Consequently it would have been contradictory and superfluous to give instructions as to what would be necessary in order to hold the defendant if the note was made to Troeder as a mere conduit pipe, upon a consideration moving from the plaintiff Hyams to the defendant, as asked in the fifth request.
Upon the facts found, it was not necessary that Troeder should have indorsed the note before this action was brought, as suggested in the first request, or that he' should have consented to its being brought, as suggested in the sixth request. If the plaintiff Hyams purchased the note without an indorsement, he had a right to sue in Troeder’s name, whether Troeder consented or not. Walker v. Brooks, 125 Mass. 241, 247, 248. Moreover, he had a right to sue at any time within twenty years. Rockwood v. Brown, 1 Gray, 261. The only question suggested by the facts, which is not covered by these decisions, is whether the plaintiff Hyams’s rights were diminished by taking an indorsement after this suit was begun. See Mosher v. Allen, 16 Mass. 451. This question was not raised by the defendant ; but we may say that we see no reason for holding that the indorsement in any way bettered the defendant’s case as it stood at the trial. Hodges v. Holland, 19 Pick. 43, 44. Sigourney v. Severy, 4 Cush. 176. Drury v. Vannevar, 5 Cush. 442, 444. His original equities, if any, are preserved by the statute, which only removes the six years’ bar if the action is brought by the payee or by his executor or administrator. Pub. Sts. c. 197, § 6.
There is nothing else in the requests which were refused calling for particular remark. They either were covered by the instructions given, or singled out particular evidence for comment in a way which a party is not entitled to require the judge to do.
5. A motion for a new trial was filed on the ground of newly
¡Exceptions overruled.