Crossin v. Beebe

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: BRALEY, J.
• Citation: Crossin v. Beebe, 186 Mass. 472, 72 N. E. 65 (Mass. 1904)
• Decision Date: 18 October 1904
• Parties: CROSSIN v. BEEBE.

186 Mass. 472

72 N.E. 65

CROSSIN v. BEEBE.

Supreme Judicial Court of Massachusetts, Berkshire.

October 18, 1904

COUNSEL

P.J. Moore, for plaintiff.

Chas E. Burke and H. C. Joyner, for defendant.

OPINION

BRALEY, J.

This is an action of contract, brought in the district court of Central Berkshire to recover a balance due on a promissory note given by the defendant, and on which several payments had been made. The answer pleaded payment and tender before suit of the amount admitted to be due, followed by payment into court of this sum for the use of the plaintiff. At the trial on appeal in the superior court, the sole issue of fact was whether two of these payments--one of $50, and one of $20--had been made. The defendant contended and testified that he had made the first payment by his check to the order of the plaintiff, and delivered to the plaintiff's wife and the second in money to a son of the plaintiff, who had been sent to demand 'money on the note,' each of whom as a witness contradicted his evidence. It appeared that the payee's name was indorsed on the back of the check, which was presented to and paid by the bank on which it was drawn and charged to the defendant's account; and there was evidence that this indorsement was made by one of the plaintiff's sons, though the plaintiff denied that he had received either the check or the money, or that the indorsement was made by his authority. On this state of the evidence the defendant asked for an instruction to the jury that: 'If you find that the plaintiff sent his wife to the defendant to collect money on the note, and the defendant gave her his check of fifty dollars as a payment on the note and she accepted it as such payment, and afterwards failed to deliver the check to the plaintiff, but took it, or caused it to be taken, to the bank, and procured her son to write the plaintiff's name on the back of the check, and either personally or through some other person collected the fifty dollars on the check at the bank, and failed to hand the money over to the plaintiff, then the defendant is entitled to credit on the note to the amount of the check.' This instruction was refused, and the defendant excepted, when, without any objection or exception being taken by either party, and without argument, these questions of fact were submitted by the presiding judge to the jury: 'First. Whether or not the check of fifty dollars was given April...