Bowen v. Farley
| Decision Date | 27 May 1926 |
| Citation | 256 Mass. 23,152 N.E. 70 |
| Parties | BOWEN v. FARLEY |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; Philip J. O'Connell, Judge.
Action of contract by John Bowen against Owen F. Farley, Jr., to recover against defendant, as endorser of note, and on account annexed. Finding for plaintiff, and defendant excepts. Exceptions overruled.
See, also, 152 N. E. 69.
W. W. Clarke, of Boston, for plaintiff.
C. A. Warren, of Boston, for defendant.
This is an action of contract in which the plaintiff seeks in the first count to recover against the defendant as endorser of a promissory note; and in the second, upon an account annexed for labor and materials. No question of law is raised under the second count. The case was referred to an auditor, together with the case of this same plaintiff against this defendant and one Weeks, ante, as makers of the note. The question of law raised by the record in the first count is whether the defendant is liable as an endorser. The trial judge sitting without a jury found for the plaintiff.
The defendant and Weeks were the sole trustees of the Berry Real Estate Trust, a voluntary trust existing by virtue of a declaration of trust dated April 15, 1918, and duly recorded in the Suffolk Registry of Deeds. On June 20, 1919, the trust executed and delivered a promissory note to the plaintiff in settlement of a claim for a balance due him which he had against the trust for the erection of a garage. The note was for the sum of $8,500 and bore interest at the rate of 6 per cent. per annum. It was endorsed by the defendant and was payable at the Old South Trust Company of Boston; the first payment thereunder was to be made August 20, 1919, and payments were to be made monthly thereafter at the rate of $500 each. Certain payments of principal and one of interest were endorsed on the note. On July 20, 1920, the note was protested by a notary public who made demand at the Old South Trust Company and was answered by the treasurer, ‘No funds.’ Whereupon the notary on the same day duly notified the endorsers, including the defendant, of the protest.
The auditor found that the last payment on the note was made on June 20, 1920, which date, it is agreed, was on a Lord's Day; that accordingly on October 28, 1920, the date of the writ, the unpaid balance, including interest, was $3,594.67.
It is the contention of the defendant that the first unpaid instalment due on the note became so due on June 20, 1920, and that as that date was on a Lord's Day, the same was payable on Monday, June 21, 1920, and that no steps were then taken to fix the liability of the endorser; that by the terms of the note, if this default continued for thirty days, the entire balance of the principal sum then unpaid became due and payable; that therefore on July 21, 1920, the entire unpaid balance of the note became due. The defendant concedes that there was due demand and notice sufficient to charge the defendant with liability as endorser as to the $500 payment due July 20, 1920, but he...
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Eastern Inv. & Development Corp. v. Franks
...a waiver by Eastern of the notice provision, if there was one which was legally operative, inserted for its benefit. See Bowen v. Farley, 256 Mass. 23, 26, 152 N.E. 70; Jackson & Co., Inc., v. Great Am. Indem. Co., 282 Mass. 337, 342, 185 N.E. 359. Furthermore, the plaintiffs obtained ex pa......
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Nat'l Nontheatrical Motion Picture Bureau, Inc. v. Old Colony Trust Co.
...not and would not pay the note when due, and this was a waiver of demand and notice, cannot be sustained. The decision in Bowen v. Farley, 256 Mass. 23, 152 N. E. 70, is not applicable to the facts found in the case at bar. The measure of damages for failure to give notice to the indorsers ......