Wood v. Skelley

196 Mass. 114 | Mass. | 1907

Rugg, J.

The plaintiff called as a witness one Freeman, a party to the note, who testified among other matters that he saw the defendant sign the note in suit, and that it was then in the same condition and read exactly the same as at the trial. Erasures and an interlineation appeared upon the face of the note, as shown in the copy. Thereupon the defendant objected to the introduction of the note in evidence, and, in the midst of the trial, asked the court to rule in substance that these were material and patent alterations in the note and that the plaintiff was bound to explain them to the court before the note could be shown to the jury. In support of his exception to a refusal to grant this request the defendant relies upon Ives v. Farmers’ Bank, 2 Allen, 236. That case supports no such proposition. The proper practice, when a note is offered, which appears to have been altered, is for the presiding judge to determine, upon inspection and in view of the state of the evidence at the time, whether further proof in explanation of the alterations shall then be required before the instrument be admitted. His action in this respect rests upon his sound discretion, to the exercise of which no exception lies. Ives v. Farmers’ Bank, 2 Allen, 236. Ely v. Ely, 6 Gray, 439. Graham v. Middleby, 185 Mass. 349. In the present case, one witness already had testified that the defendant signed the note, when it was in the same condition when it was offered in evidence. Under these circumstances .it was the duty of the judge to permit it to be read. His refusal would have been a wrong to the plaintiff. Moreover the presentation of prayers for rulings and requesting the judge to pass upon them, in the midst of the -examination of a witness, were wholly irregular.

The first request for ruling presented by the defendant at the close of the evidence has not been argued. Plainly it could not have been given. There is no evidence in the bill of exceptions, to which the next request is applicable. We cannot conceive of any evidence as to which such a statement, as this request embodies, could be sound. The next request could not have been granted, for the reason that there was abundant evidence to warrant the jury in finding that the note, when signed by the defendant, was so written as to carry interest from its date.

The next request was properly .refused. There was no evidence that the handling of commercial paper constituted “ a considerable part of the plaintiff’s business.” Although he testified that he was familiar with negotiable instruments, it does not appear what his business was. There was no question but that he was on his guard as to the note, for he testified that he noticed the alterations and made inquiries about some of them and received satisfactory explanations. Without deciding whether the request did not point to a collateral issue, it is enough to say that it was not applicable to any phase of the evidence. The final prayer was properly refused because it stated the burden of proof as required of the Commonwealth in criminal cases and not that required of plaintiffs in civil actions. No exception was taken to the rulings given by the judge as to burden of proof.

Exceptions overruled.