Buswell v. Fuller

• Decision Date: 09 May 1892
• Parties: BUSWELL v. FULLER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

156 Mass. 309

31 N.E. 294

BUSWELL v. FULLER.

Supreme Judicial Court of Massachusetts, Norfolk.

May 9, 1892

COUNSEL

H.F. Buswell, for plaintiff.

E.B Powers, for defendant.

OPINION

KNOWLTON, J.

The defendant contends that the note declared on was given without consideration. The production by the plaintiff of the note, bearing the defendant's signature and purporting to be given for value received, made a prima facie case, and, to maintain the defense, it was incumbent on the defendant to produce affirmative proof that it was without consideration. To do this, she produced another note, dated June 4, 1874, and otherwise identical with the note in suit and testified that she gave it for a good consideration; that a year afterwards she offered the payee a payment on the principal of the note, which he refused, saying "he did not want me to pay the principal; he only wanted me to pay the interest while he lived;" that in 1881 the payee called on her, and passed the note over to her, and said, "I will give it to you," saying that "he had never done much for my husband, [his son.]" She further testified as follows: "Then he asked me if the place was not in my name. I said, 'Yes.' 'Well,' he said, 'as he is doing business, I will give this note to you.' So I took it, and supposed he was going to let me keep it; but he said he would like to have it, so that he could indorse the interest on it. So, after I had looked it over, I counted up the number of times I had paid interest, and remarked, 'Well, I have paid a good many interests on this, and if I pay many more I shall pay as much interest as the principal would amount to.' " She then returned the note to the payee, who retained it up to the time of the giving of the note in suit, and the defendant made payments of interest up to said date, and the payee indorsed them on the note. She also testified that on June 4, 1885, the date of the note in suit, she called on him for the purpose of paying the interest on the note of 1874. "I said to him, as he brought out the note, or he said to me, rather, 'This is all covered over with interest that has been indorsed on it.' I said there was no room to put any more on. So he took a piece of paper, and wrote a new one [the note in suit] himself." In reference to her paying interest on the note from 1881 to 1888, she testified: "The fact was he wouldn't accept money from me. I wanted to pay it up if he was ever going to have me pay it; he wouldn't settle it. Question. He wanted you to pay the interest? Answer. Yes, sir; he expected me to pay the interest; he told me so. Q. And he held the note so that he could compel you to pay the interest? A. He expected me to pay the interest. Q. You considered yourself bound to pay the interest, did you not? A. That is what he told me. He told me he should leave it so I should have it. Q. So that you should have it finally? A. So that it should be handed to me. Q. That is, you expected him to give you the note, or his representative? A. He gave it to me, as I told you, at that time, and I allowed him to keep it in his possession." She paid interest on the note until within less than six months of his death.

The plaintiff excepted to the refusal of the presiding judge to rule, as matter of law, that the above-recited facts did not disclose a defense to the action; and this exception presents the only question in the case. The defendant contends that the note of June 4, 1874, had become a nullity before the note in suit was given, and that the latter was therefore without consideration. If there had been a completely executed gift of the first-mentioned note, with a delivery of it for the purpose of passing the whole title to it, and of giving up all control of it or dominion over it, the debt would have been canceled, and there would have been no consideration for the note in suit. Slade v Mutrie, 154 Mass. ----, 30 N.E. 168. But nothing less than that would suffice to deprive the first note of validity. A mere oral gift, without a complete transfer of the thing given, such that the giver no longer retains control of it, is ineffectual to pass a title. If the plaintiff's testator undertook to give the defendant the principal of the note, and to retain the interest during his life, and kept...