Alpert v. Radner

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtQUA
Citation293 Mass. 109,199 N.E. 407
PartiesALPERT v. RADNER et al. SPRINGFIELD INST. FOR SAVINGS v. AMERICAN WINDOW CLEANING CO. OF SPRINGFIELD et al.
Decision Date02 January 1936

293 Mass. 109
199 N.E. 407

ALPERT
v.
RADNER et al.
SPRINGFIELD INST.
FOR SAVINGS
v.
AMERICAN WINDOW CLEANING CO.
OF SPRINGFIELD et al.

Supreme Judicial Court of Massachusetts, Hampden.

Jan. 2, 1936.


Exceptions from Superior Court, Hampden County; W. A. Burns, Judge.

Two suits in equity tried together in Superior Court by Morris Alpert against Victor Radner and others and the Springfield Institution for Savings against the American Window Cleaning Company of Springfield and others. From a judgment for plaintiff on issues framed for the jury, the defendant Victor Radner brings exceptions.

Exceptions overruled.


[293 Mass. 110]J. P. Kirby and J. B. Cowett, both of Springfield, for victor radner.

J. H. Jones, J. H. Mitchell, and J. B. Nason, all of Springfield, for Springfield Institution for Savings.


D. H. Keedy and I. Fein, both of Springfield, for Morris Alpert.

QUA, Justice.

In each of these suits, brought in 1934, the court framed issues for a jury to determine how much, if anything, the defendant Victor Radner, hereinafter called Radner, owes the Springfield Institution for Savings, hereinafter called the bank, on a promissory note payable to it on demand in the sum of $5,000, dated March 17, 1920, and signed as follows:

In Presence of John D. Clarke}

Louis Radner

Victor Radner

In his answer in each suit Radner pleaded the six-year statute of limitations, G.L. (Ter.Ed.) c. 260, § 2. He admitted his own signature on the note and his delivery of the note to the bank, but denied that Clarke had witnessed it and denied that the note was a witnessed note.

At the trial of the issues the bank introduced the note and oral evidence tending to identify the signature of Clarke, then deceased, and rested. Radner offered no evidence, except some of Clarke's signatures admitted for comparison. The court directed a finding by the jury that Radner owed the bank a sum the amount of which is not in dispute. Radner excepts.

The ruling was right and would have been right even if the bank had offered no evidence at all, except the note. Radner is bound by the statements in his answer. G.L. (Ter.Ed.) c. 231, § 87. The record shows that the admission therein of his own signature and of delivery refers to the note in its present form. His answer establishes the fact [293 Mass. 111]that he negotiated the note to the bank. R.L. c. 73, § 47 (now G.L. [Ter.Ed.] c. 107, § 53). Liberty Trust Co. v. Tilton, 217 Mass. 462, 105 N.E. 605, L.R.A. 1915B, 144. By R.L. c. 73, § 82 (now G.L. [Ter.Ed.] c. 107, § 88), ‘Every person negotiating

[199 N.E. 408]

an instrument by delivery’ warrants to the immediate transferee that ‘the instrument is genuine and in all respects what it purports to be.’ We think that the instrument in question purported to be as to both makers a promissory note ‘signed in the presence of an attesting...

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16 practice notes
  • Chase v. Pevear
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 9, 1981
    ...(taking of second mortgage on sale of real estate); Springfield Safe Deposit & Trust Co. v. First Unitarian Soc'y, 293 Mass. 480, 485-487, 199 N.E. 407 (1936) (mortgage On the other hand, we have held that a disproportionate part of a trust fund should not be invested in a single kind of st......
  • Zelby Holdings, Inc. v. Videogenix, Inc., No. 16-P-874
    • United States
    • Appeals Court of Massachusetts
    • August 18, 2017
    ...statute of limitations by making a partial payment on a debt. See Day v. Mayo, 154 Mass. 472, 474, 28 N.E. 898 (1891) ; Alpert v. Radner, 293 Mass. 109, 111, 199 N.E. 407 (1936) ; Lumbermens Mut. Cas. Co. v. Y.C.N. Transp. Co., 46 Mass. App. Ct. 209, 215, 705 N.E.2d 297 (1999). The partial ......
  • Provident Inst. for Sav. in Town of Boston v. Merrill
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 26, 1942
    ...presence of an attesting witness. G.L.(Ter.Ed.) c. 260, § 1, Third. Phillips v. Vorenberg, 259 Mass. 46, 156 N.E. 61;Alpert v. Radner, 293 Mass. 109, 199 N.E. 407. The bill of complaint, however, was not filed until March 15, 1941. The bank contends that the payments made by Bradlee tolled ......
  • Lynch v. Signal Finance Co. of Quincy
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 28, 1975
    ...by failure to assert it in its answer. See G.L. c. 231, § 19; McLearn v. Hill, 276 Mass. 519, 522, 177 N.E. 617 (1931); Alpert v. Radner, 293 Mass. 109, 111, 199 Page 734 N.E. 407 (1936). The matter having been fairly heard and decided, any defect of form could be cured by amendment. G.L. c......
  • Request a trial to view additional results
17 cases
  • Chase v. Pevear
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 9, 1981
    ...(taking of second mortgage on sale of real estate); Springfield Safe Deposit & Trust Co. v. First Unitarian Soc'y, 293 Mass. 480, 485-487, 199 N.E. 407 (1936) (mortgage On the other hand, we have held that a disproportionate part of a trust fund should not be invested in a single kind of st......
  • Zelby Holdings, Inc. v. Videogenix, Inc., No. 16-P-874
    • United States
    • Appeals Court of Massachusetts
    • August 18, 2017
    ...statute of limitations by making a partial payment on a debt. See Day v. Mayo, 154 Mass. 472, 474, 28 N.E. 898 (1891) ; Alpert v. Radner, 293 Mass. 109, 111, 199 N.E. 407 (1936) ; Lumbermens Mut. Cas. Co. v. Y.C.N. Transp. Co., 46 Mass. App. Ct. 209, 215, 705 N.E.2d 297 (1999). The partial ......
  • Provident Inst. for Sav. in Town of Boston v. Merrill
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 26, 1942
    ...presence of an attesting witness. G.L.(Ter.Ed.) c. 260, § 1, Third. Phillips v. Vorenberg, 259 Mass. 46, 156 N.E. 61;Alpert v. Radner, 293 Mass. 109, 199 N.E. 407. The bill of complaint, however, was not filed until March 15, 1941. The bank contends that the payments made by Bradlee tolled ......
  • Lynch v. Signal Finance Co. of Quincy
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 28, 1975
    ...by failure to assert it in its answer. See G.L. c. 231, § 19; McLearn v. Hill, 276 Mass. 519, 522, 177 N.E. 617 (1931); Alpert v. Radner, 293 Mass. 109, 111, 199 Page 734 N.E. 407 (1936). The matter having been fairly heard and decided, any defect of form could be cured by amendment. G.L. c......
  • Request a trial to view additional results

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