270 Mass. 371 | Mass. | 1930
The declaration in this action of contract is in five counts on promissory notes. The record shows that the defendant was the accommodation indorser on a note given to the plaintiff as payee by Chester M. Perry, dated March 13, 1924, in the sum of $1,500, and waiving demand and notice. This note is declared on in count five. The copy of this note annexed to the declaration shows that the time of. payment could be extended without notice to or assent of the indorser, but the record shows that there was no evidence as to the contents of the indorsement except a waiver of demand and notice, and no copy of this note was offered in evidence. It was apparently a lost note, the declaration stating that a “copy whereof as near as can be made” is .annexed. The plaintiff testified that at maturity he received a renewal of this note. The bill of exceptions recites there was “no testimony as to what he received as said renewal.” The plaintiff further testified that later, upon a subsequent renewal and acting in good faith, he received the note set out in count one, relying on the defendant’s alleged indorsement as it appears
The plaintiff testified that none of the notes sued on was paid in whole or in part. The defendant admitted that he never paid anything on the original note dated March 13, 1924, and indorsed by him. He testified that he never gave authority to the maker Chester M. Perry to indorse his name to the renewal notes “or any other note,” nor did he “ratify any indorsement of his name by any one”; that at some time subsequent to March 13, 1924, Chester M. Perry returned the original note stating it had been paid. He further testified that the only note of Chester M. Perry he indorsed was the original note of March 13, 1924. A verdict was entered for the defendant.
The plaintiff requested these rulings: “1. Upon all the evidence the verdict must be for the plaintiff.” “4. If the plaintiff surrendered the original note bearing the genuine indorsement of the defendant for an instrument or instruments purporting to be a renewal note or renewal notes on which the defendant’s indorsements are forged, such surrender does not extinguish the surrendered note, and the defendant is liable thereon.” The requests were refused, and the plaintiff excepted.
The judge charged the jury in substance that under G. L. c. 107, § 143 (6) a person secondarily liable on a promissory note is discharged by an agreement binding on the holder to postpone “the holder’s right to enforce the instrument, unless made with the assent of the party secondarily liable,” or unless the right of recourse against such party is expressly reserved; that unless “there is either assent at the time of renewal of the separate notes” or assent when the “original note is given to be bound by such additional notes . . . then any extension of the note
The plaintiff’s first request was denied properly: this question should have been raised by motion and not by a request for a ruling. Common Law Rule 44 of the Superior Court (1923). Patton v. DeViney, 259 Mass. 100, 102. As there was evidence that the indorsements on the promissory notes declared on in counts one, two, three and four were forgeries, a verdict could not be directed for the plaintiff.
Even if it be assumed that the fourth request of the plaintiff states the law correctly, it did not apply to the facts. The original note set out in count five of the declaration was dated March 13, 1924, and was payable in one month. The plaintiff testified that at the maturity of this note he received “a renewal of said promissory note” and surrendered the original note to the maker. If the plaintiff gave up the original note and received a renewal note, there is no evidence showing the terms of this renewal note, when it matured, or who was the maker; nor did it appear that it bore the indorsement of any one. This renewal note is not in suit, and there is no intimation that any of the signatures on this renewal were forged or that there was fraud in the transaction. The note declared on in count one was dated October 15, 1925, — more than a year after the maturity of the original note — and this note of October 15, 1925, was not given in renewal of the
The plaintiff also excepted “To so much of said charge . . . instructing the jury that if the plaintiff received a renewal note which bore the forged indorsement of the defendant, the defendant was thereby relieved from liability by reason of his indorsement of the original note.” The defendant would not be discharged from liability if a note bearing a forged indorsement of the defendant were taken in renewal of the original note. Central National Bank v. Copp, 184 Mass. 328. Bass v. Wellesley, 192 Mass. 526. But we can find nothing in the charge indicating that the instruction excepted to was given. The jury were instructed: “The protection given by the statute to the indorser of a note cannot be nullified by having some third party forge his signature on the note and put him in the same position with respect to the question of renewal as if the signature had been genuine .... If they are forged instruments, and if the original instrument was renewed
In that part of the charge where the judge said to the jury, “Of course, if you accept that as a fact and the signatures are not genuine, there would be no evidence to show any consent on his part to the extension,” we do not think the jury were misled or that there was error. The judge at this point was referring to the question whether the defendant “agreed to the extension of these notes,” and directed the jury’s attention to the evidence that the defendant said he had no communication with the plaintiff “between the time when the original note was given and a time some time subsequent to the date of any of the renewal instruments.” The defendant was not liable if the time of payment of the original note was extended and the original note renewed by a genuine note without his consent. In view of these facts we find no error in the conduct of the trial.
Exceptions overruled.