Bovarnick v. Davis

• Decision Date: 28 February 1920
• Citation: 126 N.E. 380,235 Mass. 195
• Parties: BOVARNICK v. DAVIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

235 Mass. 195

126 N.E. 380

BOVARNICK

v.DAVIS.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 28, 1920.

Appeal from Municipal Court of Boston, Appellate Division.

Action by Bessie Bovarnick against Philip Davis, resulting in a finding for plaintiff. The case was reported to the appellate division of the municipal court of the city of Boston, which dismissed the report, and defendant appeals. Order dismissing report affirmed.A. M. Schwarz and S. A. Dearborn, both of Boston, for plaintiff.

Dunbar, Nutter & McClennen, of Boston (Jacob J. Kaplan, of Boston, and George P. Davis, of Waltham, of counsel), for defendant.

JENNEY, J.

April 12, 1918, Philip Davis executed and delivered to Harry E. Borroughs his promissory note, complete and regular on its face, and payable on time. The plaintiff took said note in good faith and for value, before its maturity and without notice of any infirmity in the instrument or defect in title of the person negotiating it. The terms of the note negative its previous dishonor. The plaintiff then had the rights of ‘a holder in due course.’ R. L. c. 73, § 69. It is conceded that before the maturity of the note, it was indorsed by the plaintiff to the Boston Egg Company in payment of her pre-existing indebtedness to that company, which indebtedness either was or could have been found to be charged on the books of that company to her husband. The note was not paid at maturity and thereafter was delivered to the plaintiff's husband, and the sum payable according to its terms was ‘charged back’ to the husband on the books of the company against certain dividends to which he was entitled. The husband ‘handed’ the note to the plaintiff who thereafter brought this action.

The defendant contends that the finding for the plaintiff was wrong (1) because she had no title to the note and because the evidence is not sufficient to support a finding that she was entitled to maintain suit as a holder with the assent of her husband, whom the defendant claims to have been the real party in interest; and (2) because the transaction at the time of the maturity of the note amounted to its payment and extinguished the liability of the maker.

1. The trial judge found that the plaintiff's husband in all that he did acted as her agent and that she does not claim under him. It is contended that the evidence did not justify the finding. It was sufficient to warrant the conclusion that the husband, in delivering the note to his wife, did not do so with the intent merely to give her its custody, and that he received it for her benefit and delivered it to her as her own. The note had never been owned by the husband and the inference that he received it in behalf of his wife was well warranted. The finding that he acted as her agent was therefore supported by the evidence and must stand. See Leavitt v. Wintman, 234 Mass. 248, 125 N. E. 390. In any event, the plaintiff, as the person in possession of the note with the assent of her husband, may maintain this suit thereon. R. L. c. 73, § 68; National Pemberton...