Bill v. Stewart
| Decision Date | 22 June 1892 |
| Citation | 156 Mass. 508,31 N.E. 386 |
| Parties | BILL v. STEWART. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Moulton, Loring & Loring, for plaintiff.
W.H Brown and W.J. McIntyre, for defendant.
The findings of fact of the judge, who tried this case without a jury, are conclusive, and cannot be reviewed by this court. A check is a negotiable instrument, and a holder of it in good faith, and without notice of any infirmity of title, is entitled to maintain an action upon it against the maker although the latter has a good defense as against the payee. Ames v. Meriam, 98 Mass. 294; Bank v Harris, 108 Mass. 514; Robertson v. Coleman, 141 Mass. 231, 4 N.E. 619. The fact that it is postdated does not take the case out of the rule. Currie v. Misa, L.R. 10 Exch. 153. The check in this case was obtained by the payee from the maker by fraud, and the burden of proof was upon the indorsee to show that he took it for value and in good faith before its maturity. Smith v. Livingston, 111 Mass. 342; Sullivan v. Langley, 120 Mass. 437; Bank v. Cushman, 121 Mass. 490. The judge found that the plaintiff was a bona fide holder, and the question is whether there was any evidence that he was such a holder, and whether he had sustained the burden of proof. It appeared that the plaintiff gave full value for the check, and there was evidence of all the circumstances attending the transaction. These were certainly evidence of good faith on his part. Sullivan v. Langley, ubi supra; Bank v. Savery, 127 Mass. 75, 79; Lee v. Whitney, 149 Mass. 447, 21 N.E. 948. The judge was therefore justified in his finding, and in refusing to give the second and third requests for instructions.
The remaining question is whether the first request should have been given. The defendant testified that, when he delivered the check to Dearborn, the latter agreed not to use the check until Monday, the day it bore date. The plaintiff testified that Dearborn told him, at the time he (the plaintiff) bought the check, that he did not wish him to deposit it until Monday, and that he had agreed with Stewart not to use it until Monday. The judge found the facts to be in accordance with this testimony, and further found "that the agreement not to use the check until Monday was, in effect, an agreement not to present it for payment until that time." Whether this is to be taken as a finding of fact or a ruling of law, it...
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