Alpert v. Radner

• Decision Date: 02 January 1936
• Citation: 293 Mass. 109,199 N.E. 407
• Parties: ALPERT v. RADNER et al. SPRINGFIELD INST. FOR SAVINGS v. AMERICAN WINDOW CLEANING CO. OF SPRINGFIELD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

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.

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 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 negotiatingan 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 witness' and therefore the kind of note as to which by G.L. (Ter.Ed.) c. 260, § 1, the period of limitation for an action by the original payee is twenty years and not six years. That was the nature of the instrument which the bank was justified in believing it was getting. Attestation changes the character of the contract. It puts the note in some measure ‘on the footing of a bond or other specialty.’ Smith v. Dunham, 8 Pick. 246, 249. Prima facie the bank became a holder in due course. R.L. c. 73, § 76. See, also, section 69. See now G.L. (Ter.Ed.) c. 107, §§ 82, 75. To hold that the warranty of R.L. c. 73, § 82 (now G.L. [Ter.Ed.] c. 107, § 88), includes the attestation of the instrument as well as its execution by the parties is consistent both with the wording of the section itself and with the liberal construction which is given to the negotiable instruments law in the interest of certainty and security in commercial transactions. See Union Trust Co. v. McGinty, 212 Mass. 205, 98 N.E. 679, Ann.Cas. 1913C, 525.

There is nothing in the nature of the statute of limitations which is controlling against that construction of the negotiable instruments law which will most effectually accomplish the purposes of the latter. Any party may waive the six year statute of limitations at will by making his contracts under seal or by having his notes witnessed. After it has run in his favor he may waive it by acknowledgment in writing or by part payment. G.L. (Ter.Ed.) c. 260, §§ 13, 14. He is deemed to have waived it if he does not plead it. He may estop himself from asserting it. McLearn v. Hill, 276 Mass. 519, 177 N.E. 617, 77 A.L.R. 1039. And it has been held that he may, as a term of his original contract, agree not to avail himself of the statute. State Trust Co. v. Sheldon, 68 Vt. 259, 35 A. 177. See, also, Webber v. President, etc., of Williams College, 23 Pick. 302;Kellogg v. Dickinson, 147 Mass. 432, 18 N.E. 223,1 L.R.A. 346.

A party to a negotiable instrument, when sued upon the instrument, is estopped to defend upon grounds inconsistent with the warranties by...