Blackington v. Johnson

Decision Date20 November 1878
Citation126 Mass. 21
PartiesEunice W. Blackington, administratrix, v. Arthur Johnson
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Suffolk. Contract against the maker of a promissory note for $ 300, dated November 12, 1875, and payable, six months after date, to the order of the plaintiff's intestate. Writ dated December 13, 1876. The answer contained a general denial, and alleged payment by another promissory note for $ 300, dated May 12, 1876, signed by the defendant, payable in six months, and delivered to the plaintiff's intestate. The defendant also filed a declaration in set-off for services rendered the intestate to the amount of $ 506. The plaintiff thereupon was allowed to amend his declaration by adding a second count declaring on the note of May 12, 1876.

The case was referred to an auditor, who reported that, at the hearing before him, it appeared in evidence that the consideration for the first note was money lent by the intestate to the defendant; that, when the note became due, a new note for the same sum was given, payable on demand; that the papers left by the intestate had been examined, and the first note found among them; that the second note was not found, and was not produced at the hearing; that there was no evidence that it had ever been seen by any one after the defendant signed it and gave it to the intestate; that the defendant testified that he paid the first note at its maturity by giving the second at a time when he and the intestate were alone together, then paying the six months' interest, nine dollars, partly in money, and partly in things of small value, which the intestate had received from him at various times; that he admitted that he had never paid the second note in money, and that its date and tenor were correctly set forth in the plaintiff's second count. The auditor found that the first note had been paid by the second; and found for the plaintiff on the second count; and for the defendant on his declaration in set-off to the amount of $ 218.

At the trial in the Superior Court, before Putnam, J., the plaintiff put in evidence the auditor's report, which was read to the jury, and called the auditor, who testified that no one but the defendant testified before him as to the payment of the first note and the making of the second, as stated in the report. The plaintiff then rested her case. The defendant, in his opening, stated that he should offer no evidence except to control the auditor's report on one item of the declaration in set-off, and called several witnesses, who testified on this point; and the plaintiff was allowed against the defendant's objection, to cross-examine them as to the two notes, and as to all the items in set-off.

The plaintiff went to the jury upon both notes, and contended that the first note had never been paid, and that there never was a second note; but that if the jury found that the first note had been paid by the giving of the second, then that she could recover upon the second...

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17 cases
  • Lunn & Sweet Co. v. Wolfman
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • September 12, 1929
    ...of the auditor is not supported by the subsidiary facts upon which it is based, the final conclusion may be disregarded. Blackington v. Johnson, 126 Mass. 21. That principle is not applicable to the case at bar because the subsidiary facts support the final conclusion of the auditor. The Ma......
  • The Syndicate Improvement Company v. Bradley
    • United States
    • Wyoming Supreme Court
    • January 8, 1896
  • Parker v. Parker
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 3, 1888
    ... ... 396; Doane v. Glenn, 21 Wall. 33; Shutte v ... Thompson, 15 Wall. 160; Bartlett v. Hoyt, 33 ... N.H. 151; [15 N.E. 903] Johnson v. Rankin, 3 Bibb. 86; ... Sewing-Machine Co. v. Lewis, 10 Bradw. 191; ... McMillan v. Railroad Co., 56 Iowa, 421, 9 N.W. 347; ... Stowell v ... of exception. Com. v. Shaw, 4 Cush. 593; ... Prescott v. Ward, 10 Allen, 203; Blackington v ... Johnson, 126 Mass. 21. In this state experts only and ... subscribing witnesses to wills have been permitted to give ... opinions upon ... ...
  • Peaslee v. Ross
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • January 7, 1887
    ...verdict differing from the result arrived at by the auditor. Peru Steel & Iron Co. v. Whipple File, etc., Co., 109 Mass. 464; Blackington v. Johnson, 126 Mass. 21; Emerson v. Patch, 129 Mass. In the case at bar, the auditor reports general findings in favor of the plaintiff; but he also rep......
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