Burnham v. Windram
| Decision Date | 21 September 1895 |
| Citation | 41 N.E. 305,164 Mass. 313 |
| Parties | BURNHAM v. WINDRAM (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
These were actions of contract between the same parties, and were tried together. The first action was on two promissory notes copies of which hereinafter appear, marked "A" and "B," respectively, and the second action was on the note, a copy of which is marked "C." All the said notes were introduced in evidence, and also the paper, a copy of which is marked "D." The plaintiff testified that, on the day of the date of said notes, the same were delivered to him, with certificate for 500 shares of stock of Boston Woven Cordage Company, referred to in note C, and in return therefor, at the same time, he gave to defendant $350 in money, surrendered a note for $550, then overdue (which note was made by the defendant, and indorsed by one Nutter) and signed and delivered the paper, a copy of which is marked "D." The plaintiff also testified that nothing had been paid on said note; that he had not been able to sell said stock, or any part thereof, although he had offered the same for sale at public auction under terms of note C, and that he still held the original certificate delivered to him as aforesaid; and that said stock was now worthless. There was no other evidence, material to the issues of these cases introduced at the trial. The defendant requested the court to rule: First. That the notes and the paper marked "D" should be construed together, and, being so construed, showed that the defendant owed the plaintiff only the amount of notes A and B, with interest from the date of maturity thereof; on payment of which the plaintiff was bound to return note C and said shares of stock of the Boston Woven Cordage Company. Second. To instruct the jury that, upon the foregoing evidence, the defendant owed the plaintiff only $900,--the amount of notes A and B,--with interest from the date of maturity thereof. Third. That, upon the evidence, the jury should find for the plaintiff in the first action for the amount of notes A and B, and interest as aforesaid, and should find a verdict for the defendant in the second action. But the court declined so to rule and instruct the jury, and ruled that the plaintiff, on the evidence, was entitled to a verdict in both actions, and instructed the jury to find a verdict in each action for the amount of the notes declared on therein, and interest, not to exceed the ad damnum of the writ in either case. And the jury returned a verdict for the plaintiff in the first action for $1,000 (the amount of the ad damnum of the writ therein), and returned a verdict in the second action for $1,000 (the amount of the ad damnum of the writ therein), both of which verdicts were duly recorded. From said rulings and refusals to rule defendant excepts.
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