Cohen v. Ziskind
| Decision Date | 27 March 1935 |
| Citation | 290 Mass. 282,195 N.E. 346 |
| Parties | COHEN v. ZISKIND et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions from Superior Court, Middlesex County; Qua, Judge.
Action of contract by Max J. Cohen against Jacob Ziskind, Hyman Ziskind and others. The judge found for defendant Hyman Ziskind, who alone defended the action, after a hearing without a jury, and plaintiff brings exceptions.
Exceptions overruled.
J. M Maloney, of Boston, for plaintiff.
B. Silverblatt and M. G. Rogers, both of Lowell, for defendant.
This is an action of contract to recover a balance of $3,150 alleged to be due upon a promissory note dated May 15, 1924, wherein the four original defendants promise to pay to The Progressive Co-operative Association, or order, $5,000, payments amounting to $1,850 having been made on said note exclusive of a payment of $80 as of January 1, 1927.
The plaintiff is the indorsee of said note. The defendants David Zisking and Jacob Ziskind were defaulted, and the defendant Samuel Cohen died after the action was brought and before trial. The defendant Hyman Ziskind alone defendant at the trial, and in his amended answer set up as defences; general denial, payment, denial of the sufficiency and validity of the endorsement to the plaintiff; that the payee was doing business illegally and the note was therefore illegal; denial of the genuineness of the signatures of the indorsers, and that the note sued on was a loan from a partnership to a partner which could not be the subject of an action at law but is solely a matter of accounting and that there has been no accounting.
The case was tried in the Superior Court without a jury. The judge found that the signature upon and delivery of the note were established; that the note was indorsed to the plaintiff before the action was brought, by the treasurer acting under authority of a vote of the directors who were authorized to pass such a vote; that the defendants were entitled to a further credit of $80 paid, and with that further credit the plaintiff would be entitled to recover the amount claimed except for other defenses particularly set up in the answer; that it was unnecessary to pass upon the defense that the business was being conducted unlawfully; that the association was a partnership and that this action at law could not be maintained on a note running from a partner to a partnership; that Samuel Cohen was not a member of the partnership and so far as appears was never a partner; that the plaintiff was not a holder in due course, but he took the note without consideration and with knowledge of all the material facts and for the sole purpose of bringing suit for the benefit of the association; that the defendant David Ziskind alone got the money from the association and that the defendants Hyman Ziskind, Jacob Ziskind and Samuel Cohen were among themselves merely sureties for David Ziskind.
It is recited in the bill of exceptions that there was evidence that at the date of the note there were about two hundred ‘ shareholders,’ so called, of the association that the association had done no new business since the passage of St. 1926, c. 273 () and that there is no evidence that any accounting has ever been had between the association and any person or persons to whom it had lent money on notes similar to the note in suit. The only testimony respecting the manner in which loans were made is that no loans were made on real estate; that no loans were bid for; and that interest at the rate of six per cent. per annum was charged and collected in advance, like...
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