Cary Brick Co. v. Wheeler

• Decision Date: 29 November 1911
• Citation: 210 Mass. 338,96 N.E. 800
• Parties: CARY BRICK CO. v. WHEELER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

210 Mass. 338

96 N.E. 800

CARY BRICK CO. v. WHEELER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

November 29, 1911

COUNSEL

Arthur & Bernard Berenson, for plaintiff.

Jacob Isaacs, for respondents.

OPINION

SHELDON, J.

The only questions presented are whether the promissory note given by the respondent to the petitioner was presumed to be a part payment of the petitioner's demand, whether such a presumption had been rebutted, and whether the amount due to the petitioner should be reduced by the amount of the note. This note and one given in renewal thereof were not paid; and they were tendered to the respondent at the trial, and on his refusal to accept them were left in the custody of the court.

The instructions given to the jury were sufficiently favorable to the respondent, and the rulings requested by him, so far as they were inconsistent with those instructions, were properly refused.

The burden was upon the respondent to prove the payment which he alleged, and this burden was not shifted by proof that he had given to the petitioner a note for part of what was due. It is true in this commonwealth that a negotiable promissory note given for an unsecured simple contract debt is deemed to have been given and taken in payment of that debt. But this is merely a presumption of fact, not to be applied as of course to the case of a debt secured by any kind of pledge or lien. Brewer Lumber Co. v. Boston & Albany R. R., 179 Mass. 228, 234, et seq., 60 N.E. 548, 54 L. R. A. 435, 88 Am. St. Rep. 375, and cases there cited. 'The fact that the result of giving effect to the presumption will be to deprive a party, in a given case, of security which he has for the payment of his debt, will go a long way towards rebutting the presumption.' Paddock & Fowler Co. v. Simmons, 186 Mass. 152, 153, 71 N.E. 298, 299; American Malting Co. v. Souther Brewing Co., 194 Mass. 89, 94, 80 N.E. 526. This is the rule stated in O'Connor v. Hurley, 147 Mass. 145, 150, 16 N.E. 764, relied on by the defendant.

There is no foundation for these exceptions, and they must be overruled with double costs.

So ordered.