Wait v. Thayer

Decision Date22 October 1875
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
PartiesLyman J. Wait v. Justin Thayer & others

[Syllabus Material] [Syllabus Material] [Syllabus Material]

Franklin. Contract against Justin Thayer, George Sergeant, Luke Lyman and Samuel F. Warner, copartners doing business under the firm name of Thayer, Sergeant & Company, on the following promissory note, signed "S. F. Warner," and indorsed "Thayer, Sergeant & Co.": "Northampton, Mass., Nov. 1st, 1872. One year from date, I promise to pay to the order of Thayer, Sergeant & Co., one thousand dollars, at ten per cent. interest, value received." Warner was defaulted. The other defendants answered, denying their liability. Pending the suit, Thayer and Sergeant died, and the action was prosecuted against Lyman alone. Trial in the Superior Court, before Aldrich, J., who allowed a bill of exceptions in substance as follows:

The defendants were a trading firm, engaged in the grain and flour business, having their office in Northampton. One Graves testified for the plaintiff that he was bookkeeper of Thayer, Sergeant & Co., and that the defendants were members of the firm, which was organized in 1867 and existed until February, 1873, when it was dissolved; that Sergeant indorsed on the note the signature of the firm. On cross-examination, the witness testified that he had seen the note before, some time about November 1, 1872; that the handwriting of the body of the note, except figure "1" of the date and the rate of interest, was in the witness' own hand; that Warner was present in the office of the company at Northampton, when the witness wrote it at Warner's request; that he saw Warner sign the note after the witness wrote it; that the note at the time Warner signed it was without the words "ten per cent. interest," and without the figure "1" of the date, these having been added since; that he saw Sergeant write the name of the firm on the back of the note within an hour after Warner signed it; that there was no further addition before Sergeant indorsed it, and Warner took the note from Sergeant the last thing before he (Warner) left the office; that the witness never saw the note again till after it had been protested; that Thayer and Lyman were both absent when the note was signed and indorsed. The witness also testified that the addition of the words "ten per cent. interest" was in Warner's handwriting, and that the interest and figure "1" of the date were in the same colored ink; that he had no knowledge when the figure "1" of the date or rate of interest were written in the note; that he wrote the word "November" but not the figure "1."

The plaintiff offered to read the note to the jury, the defendant objected, but the judge allowed the note to be read, ruling that sufficient evidence of the execution and indorsement of the note had been introduced for that purpose. The defendant excepted.

After other evidence as to the demand on the maker of the note, and notice to the indorsers, the plaintiff rested his case.

The defendant asked the judge to rule that no prima facie case had been made out; that the evidence so far as offered tended to show, and did show, that the plaintiff took the note under circumstances which were of themselves notice to him that the indorsement was an accommodation indorsement for Warner, and that the defendant therefore would not be bound unless the plaintiff could show actual consent or ratification, and that the burden of proof to show this was on the plaintiff. The judge refused to rule on the question, unless the defendant rested the case upon the plaintiff's evidence. The defendant declined to rest his case, and excepted to the refusal to rule as requested.

The defendant then offered evidence tending to show that said Warner took the note to Greenfield, and there in the office of the plaintiff, and in the plaintiff's presence, wrote in the figure "1" of the date, and the words "ten per cent. interest;" that he gave this note to take up another for the same amount which had been made a year before, and was executed in a similar manner, the blanks being left as above stated, and filled up by said Warner at Greenfield, in the plaintiff's office, and in the plaintiff's presence; that on the occasion of making this former note the plaintiff let Warner have $ 1000, and Warner testified as a witness that he did not know that Sergeant, Thayer and Lyman knew anything about the writing in of the ten per cent. rate of interest.

It was in evidence that some months prior to...

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12 cases
  • New York Iron Mine v. First National Bank of Negaunee
    • United States
    • Michigan Supreme Court
    • November 21, 1878
    ...proper instructions, Chemung Bank v. Bradner, 44 N. Y., 680; Trader's Bank v. Bradner, 43 Barb. 379; Rich v. Davis, 6 Cal. 141; Wait v. Thayer, 118 Mass. 473; Smith Lusher, 5 Cow. 688; Ihmsen v. Negley, 25 Penn. St., 297; Ridley v. Taylor, 13 East, 175; Haldeman v. Bank of Middletown, 28 Pe......
  • Redlon v. Churchill
    • United States
    • Maine Supreme Court
    • January 10, 1882
    ...Story on Partnership, § 133; Waldo Bank v. Lumbert, 16 Me. 416; Holmes v. Porter, 39 Me. 160; Etheridge v. Binney, 9 Pick. 274; Wait v. Thayer, 118 Mass. 473; Bank v. Savery, 127 Mass. 75. Clarence Hale, for Holman S. Melcher, one of the defendants. The form of the note itself is notice suf......
  • International Trust Co. v. Wilson
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 13, 1894
    ... ... his firm. Atlas Nat. Bank v. Savery, 127 Mass. 75, ... 77; Freeman's Nat. Bank v. Savery, Id. 78; ... Thompson v. Hale, 6 Pick. 259; Wait v ... Thayer, 118 Mass. 473, 478. In Bank v. Law, 127 ... Mass. 72, the defendants' indorsement being above that of ... the payee made it ... ...
  • Christian Feigenspan v. McDonald
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 1, 1909
    ... ... for the accommodation of the maker, or that upon negotiation ... he received the money for his private use. Wait v ... Thayer, 118 Mass. 473. Unless there are restrictions ... limiting his authority, one member of a commercial firm may ... borrow money for ... ...
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