Ahern v. Towle
| Decision Date | 28 January 1942 |
| Parties | JOSEPH W. AHERN v. ANNIE TOWLE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
April 8, 1941.
Present: FIELD, C.
J., QUA, DOLAN & COX, JJ.
Practice, Civil Appellate Division: request for report, report; Entry of judgment; Motion; Rules of court. Rules of Court. Bills and Notes, Holder, Check, Drawer, Value, Defences, Presentment.
A request by the plaintiff for a report of a case in the Municipal Court of the City of Boston, setting forth verbatim all his requests for rulings, specifying those granted by the judge and those denied, and stating.
"The plaintiff, being aggrieved by the court's rulings and refusals to rule as requested, hereby requests a report of the same to the Appellate
Division," was a compliance with the requirement of Rule 28 that a request for a report "shall contain a clear and concise statement of the ruling upon which a rehearing is requested sufficiently full and accurate for identification."
The filing of a draft report in the Municipal Court of the City of Boston within a period, extended under Rule 29 as amended in 1935 upon motion by the party requesting the report, prevented the action from going to judgment although such extension had been granted without notice to the adverse party. A judge of the Municipal Court of the City of Boston has power under Rule
29 as amended in 1935, in his discretion and without notice to the adverse party, to grant an extension of the time within which otherwise a draft report must be filed.
The indorsement of a negotiable check by a holder to his creditor for an antecedent debt may constitute the indorsee a holder for value under G.
L. (Ter. Ed.) c 107, Section 48, although the indorsee accepts the check only in conditional satisfaction of the debt.
In an action by an indorsee for value against the drawer of a check complete and regular on its face, where there was no evidence of notice to the plaintiff of any infirmity or defect in the title of any prior party to the instrument, or of any loss to the drawer from unreasonable delay in presentment, or of any defence personal to the drawer as against a prior party through any breach by him of a contract with the drawer in connection with which the check was given, the plaintiff was entitled to a ruling that he had "presented evidence sufficient to enable him to maintain his cause of action."
CONTRACT. Writ in the Municipal Court of the City of Boston dated April 18, 1939.
The case was heard by Brackett, J. The defendant's motion to dismiss the report on the merits was heard by Donovan, J.
M. B. Lynch, for the defendant. J. B. Harte, for the plaintiff.
This is an action of contract in which the plaintiff seeks to recover on a check for $800, drawn by the defendant on The First National Bank of Boston. The judge found for the defendant and reported the case to the Appellate Division which, on March 29, 1940, ordered that judgment be entered for the plaintiff. The defendant appealed. After taking this appeal the defendant on May 9, 1940, filed in the trial court a motion that the report of the judge to the Appellate Division on the merits of the case be dismissed. The judge denied this motion and reported his action to the Appellate Division which entered an order that this report be dismissed. The defendant appealed from this order.
We first consider the disposition of the motion to dismiss the report. The material facts as to this phase of the case follow: The judge heard the case on the merits on June 7, 1939. Within the time allowed, both parties filed requests for rulings. On June 23, 1939, the judge filed a memorandum in which he found for the defendant and dealt with the plaintiff's requests for rulings, granting some and refusing others. On the same day the plaintiff filed a request for a report, which set forth verbatim his requests for rulings and specified those actually given and those refused, and stated: "The plaintiff, being aggrieved by the court's rulings and refusals to rule as requested, hereby requests a report of the same to the Appellate Division of this court."
On June 27, 1939, upon the plaintiff's motion, the judge extended the time for filing the draft report to July 15, 1939. The defendant was not given notice of this motion nor afforded an opportunity to be heard thereon. The plaintiff filed his draft report on July 12, and furnished the defendant with a copy. On July 13 the defendant requested a hearing on the draft report, which was given, and on July 21 the judge filed his report.
The defendant's motion to dismiss the report was based upon her contention that the various steps prerequisite to the claiming of a report had not been complied with. She filed twenty-five requests for rulings of which those numbered 2, 7, 14, 17 and 18 were denied by the judge. We do not decide that the motion was seasonably filed, but since the judge so ruled, in effect, and the parties have so dealt with the case, and so far as appears the Appellate Division so treated it, we deal with this phase of the case on the same basis.
The defendant's second request was as follows: "The request for a report did not comply with the provisions of Rule 28 then in force." That rule, which, so far as material, remains unchanged in the 1940 revision of the Rules of the Municipal Court of the City of Boston, provides that a request for a report to the Appellate Division "shall contain a clear and concise statement of the ruling upon which a rehearing is requested, sufficiently full and accurate for identification." In the present case the plaintiff set forth in full in his request for a report all of the requests for rulings made by him, and all of the rulings and refusals of rulings made by the judge. In these circumstances we think that it cannot be said rightly that the method employed by the plaintiff rendered identification of the disputed rulings and refusals to rule impossible or difficult. Stafford v. Commonwealth, 263 Mass. 240 , 242, Rollins v. Ferry, 284 Mass. 488 , 489, and Almeida v. Alsdorf, 291 Mass. 115 , 116, cited by the defendant, are distinguishable, since in those cases there was no basis for identification in the requests for reports comparable to that contained in the request in the present case.
The defendant's seventh request was for a ruling "That the action went to judgment on the first day after the expiration of the time to request a report fixed by G.L.c. 235, Section 2, for judgment." The plaintiff filed his request for a report within the five-day period fixed by G. L. (Ter. Ed.) c. 231, Section 108, as amended by St. 1933, c. 255, Section 1, and within the same period allowed by Rule 29 of the court involved, as amended in 1935, filed a motion for an extension of time within which to file a draft report. This motion was allowed. Normally a case is ripe for judgment when all appears to have been done with regard to the action that should be done. Porter v. Boston Storage Warehouse Co. 238 Mass. 298 , 301. Home Finance Trust v. Rantoul Garage Co. 300 Mass. 86 , 88, 89. Since, as will hereinafter appear in the consideration of the defendant's eighteenth request, the draft report was properly filed on July 12, 1939, the case was not then or prior thereto ripe for judgment. Neilson v. Malcolm Kenneth Co. 303 Mass. 437 , 439. Compare Conway v. Murphy, 287 Mass. 536 , 537. The defendant's seventh request was refused properly.
The fourteenth and seventeenth requests of the defendant need not be set forth. She was not prejudiced by their denial, since the fourteenth request was given in substance by the judge in answer to her third, fourth, fifth and sixth requests, and her seventeenth request was covered by her thirteenth request, which was given by the judge.
The defendant's eighteenth request was "That the judge could not enlarge the time for filing a draft report as attempted here without a hearing." Rule 29 of the court concerned as amended in 1935 (in force at the time of the trial) provides that extensions of time within which to file draft reports may be allowed by the judge. There is no provision therein for notice to or for opportunity to be heard on such applications by the adverse party. In an analogous situation in the Superior Court where an extension of the time for filing exceptions was involved, it was held that the opposing party was not entitled as matter of law to notice or hearing. Kennedy v. Hub Manuf. Co. 221 Mass. 136 , 139. (See now Rule 73 of the Superior Court [1932] under which the authority to grant an extension of time in such cases without notice has been somewhat restricted.) In the present case, however, no limitation being placed by the governing rule upon the authority of the judge to extend the time for filing draft reports upon applications therefor seasonably filed, the exercise of the authority conferred by the rule rested in his discretion, which does not appear to have been exercised improperly. Kennedy v. Hub Manuf. Co. 221 Mass. 136 , 139. Hellier v. Loring, 242 Mass. 251 , 253. The judge rightly refused to give the defendant's eighteenth request.
It follows from what has been said that the order of the Appellate Division dismissing the second report must be affirmed.
There remains for consideration the appeal of the defendant from the order of the Appellate Division upon the first report, concerning the merits of the case.
The record sets forth that at the trial the following facts, among others were undisputed: On October 10, 1938, the defendant agreed in writing to purchase from James H. Murray a parcel of land described as "Lot No. 50 Bates Road, Arlington, Massachusetts." Prior to that day she had been negotiating with Murray for the purchase...
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