Di Sconto v. Columbia Counter Co.

• Decision Date: 25 May 1925
• Citation: 252 Mass. 552,148 N.E. 105
• Parties: BANCA ITALIANA DI SCONTO v. COLUMBIA COUNTER CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

252 Mass. 552

148 N.E. 105

BANCA ITALIANA DI SCONTO

v.COLUMBIA COUNTER CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 25, 1925.

Exceptions from Superior Court, Suffolk County; John D. McLaughlin, Judge.

Action of contract by the Banca Italiana Di Sconto against the Columbia Counter Company, to recover on promissory note of which plaintiff was indorsee. Case was tried with action brought by same plaintiff against Charles D. Malaguti, president of the Columbia Counter Company. Finding for plaintiff, and defendant excepts. Exceptions overruled.

The defendant also presented the following requests for rulings:

‘(1) If the instrument sued on was made on Sunday, it is void, and the plaintiff cannot recover in this action.’

‘(3) If the instrument sued on was given to be used for an illegal purpose, the plaintiff cannot recover.

‘(4) If the person who signed the instrument sued on signed it without authority of the defendant, the plaintiff cannot recover.’

‘(6) The instrument being payable in Boston, Mass., is governed by the law of Massachusetts.

‘(7) If the law of a foreign country is not proved, then the law of Massachusetts is applicable to the case.

‘(8) Even if the instrument were valid in the country where it is alleged to have been made, it is invalid in Massachusetts if the jury finds that it was made on Sunday and was payable in Massachusetts.

‘(9) If the instrument sued on, even if a valid instrument in the country where it is alleged to have been made, would be invalid or void if made in Massachusetts, it cannot be enforced in Massachusetts.

‘(10) Even if the instrument is valid where it is alleged to have been made, it cannot be enforced in Massachusetts if such enforcement would be against a Massachusetts statute or against public policy.

‘(11) If the instrument sued on was made on Sunday and payable in Massachusetts, it cannot be enforced or collected in Massachusetts, because such enforcement or collection would be in violation of Massachusetts statute law and against public policy.

‘(12) If the jury finds that the signature upon the instrument sued on was forged or made without authority of Charles D. Malaguti, then the instrument is wholly inoperative and the plaintiff cannot recover. G. L. 107, § 45.

‘(13) If the jury is satisfied that the title of Alinovi Guisseppi to the instrument sued on was defective, then the burden is on the plaintiff to prove that it is a holder in due course. G. L. 107, § 82.

‘(14) If the by-laws of the Columbia Counter Company do not give authority to its president to sign instruments such as that sued on, then the defendant is not liable in this case.

‘(15) If the by-laws of the defendant Columbia Counter Company expressly provide that instruments like that sued on may only be signed for the company by its treasurer or assistant treasurer acting as such, then the defendant is not liable in this case.

‘(16) If an officer of the defendant corporation signed the instrument sued on without authority of the corporation the corporation is not liable unless there was express ratification of the act by the corporation.

‘(17) If the jury finds that the Columbia Counter Company is liable on the instrument sued on, then it must find that Charles D. Malaguti is not liable.

‘(18) If the jury finds that Charles D. Malaguti is liable as alleged in the suit against him, then the Columbia Counter Company is not liable on the instrument sued on in the suit against it.’

‘(21) If February 29, 1920, was Sunday, and the instrument sued on was payable in Boston, Mass., then all holders of the instrument are presumed to have taken it in contemplation of the Massachusetts law with respect thereto and full knowledge that under Massachusetts law the instrument was illegal and void.

‘(22) If the date on the instrument was filled in at some subsequent time to the making and the date thus filled in was Sunday and the instrument sued on was payable in Boston, Mass., then all holders in the instrument are presumed to have taken it in contemplation of the Massachusetts law with respect thereto and full knowledge that under Massachusetts law the instrument was illegal and void.’

The plaintiff read cross-interrogatory No. 7 of Alinovi's deposition as follows:

‘(7) If your answer to the defendant's interrogatory No. 7 is in the affirmative, state fully the terms of said contract including when and where delivery was to be made and when payment was to be made, where it was to be made, and the kind of money in which it was to be made.’

The defendant objected to the admission of this interrogatory on the ground that it was predicated on an affirmative answer to the defendant's direct interrogatory No. 7 and that the deponent had not answered that interrogatory in the affirmative. Direct interrogatory No. 7 and its answer are as follows:

‘(7) Did you at some time in the years 1919 or 1920, or at any other time, buy from the Columbia Counter Company certain leather invoiced to you for $23,628.51, upon which there were freight charges of $194.61, insurance charges of $418.91, making a total bill to you of $24,242.03?

‘Answer: About 1919 I bought leather from the Columbia Counter Company, amounting to a total of about $100,000, in two invoices, neither of which was for the amount of $24,242.03.’

The court admitted the answer subject to the defendant's exception, the witness deposing in answer thereto that the merchandise was to be delivered to him at Parma, no date being fixed for delivery, and payment was to be made by giving the draft for 30 days after arrival of goods in Italy, payment to be made at Parma in dollars. The court also admitted, subject to the defendant's exception, based on the same objection, cross-interrogatories 8 and 9, which read as follows:

‘(8) Was merchandise purporting to be that called for by the contract referred to in your answer to the preceding interrogatory tendered to you by the defendant or any one acting on its behalf?

‘(9) If your answer to the preceding interrogatory is in the affirmative, state:

‘(a) When it was shipped?

‘(b) From what port it was shipped?

‘(c) To what port it was shipped?

‘(d) How it was consigned?

‘(e) Did you at any time examine it, and when and where?

‘(f) Was it in fact a compliance with the terms of the contract, and, if not, in what respect did it fail to comply?

‘(g) Did it arrive at the place where it was to be delivered to you at the time stated in the contract, and, if not, how late was it?

‘(h) Was it shipped in accordance with the requirements of the contract?

‘(i) Did you accept it upon arrival?

‘(j) Did you refuse it upon arrival or any other time, and, if so, when?

‘(k) Did you accept it at any time, and, if so, when?

‘(1) Did you insist on any act on the part of the defendant as a condition of your accepting delivery of the said goods?

‘(m) If so, what was the condition, and when and how was it performed?’M. C. Taylor, of Boston, for plaintiff.

F. W. Mansfield and E. R. Mansfield, both of Boston, for defendant.

CROSBY, J.

This is an action on a promissory note, brought by an indorsee against the defendant. The note was written in the Italian language. According to the translated copy set forth in the record, it is dated February 29, 1920, payable to Joseph Alinovi, at the Prudential Trust Company in Boston, and purports to be signed ‘Columbia Counter Company, Charles D. Malaguti, President.’ It was indorsed by the payee to the order of the plaintiff. At the trial it was agreed that February 29, 1920, was Sunday.

The defendant denied making the instrument and contended that it was a forgery; it also denied that Malaguti had any authority to sign it for the defendant; that being dated on Sunday, it was void; that it was without consideration; and that the plaintiff was not a purchaser for value. The case was tried with a second action brought by the plaintiff against Malaguti personally, wherein it was alleged that he was not authorized to make the note and damages were sought for such alleged unauthorized act. The jury found for the plaintiff in the first case and for the defendant in the second.

At the date of the note and previously thereto Alinovi, the payee, was a manufacturer of shoes in Parma, Italy. The defendant is a Massachusetts corporation dealing in shoe supplies, shoe counters and upper leather, with a place of business in Boston. There was evidence tending to show that in August and September, 1919, the defendant sold and shipped to Alinovi forty-one cases of leather, amounting in all to about $100,000; that one of these shipments was invoiced at $17,566.20, and another at $6,024.35, the two together $23,590.55, being the exact amount of the note in suit; that in the shipments there were certain goods not ordered; that Alinovi accepted those that conformed to his order, rejected the rest, and notified the defendant that the latter were held in his storehouse subject to its order. There was further evidence to show that, to get the goods ordered, it was necessary for Alinovi to pay a draft for the entire lot, which he did. He testified by deposition that he requested Malaguti for payment of the leather which was not ordered; that the latter replied he did not have the money but would send it through the defendant's representatives in Milan, Antonioli and De Pol, by draft for the amount covering the rejected leather; that the instrument in question, which seems by the parties to have been considered as a draft, was delivered to Alinovi by De Pol in March, 1920; that he indorsed it (it being agreed that it is a promissory note in form) and delivered it to the plaintiff at Parma; that it was discounted by the plaintiff and the proceeds were credited to Alinovi's account.

[1] Upon the question whether the note was a forgery, the jury could have found that the statement, in the letter written by Malaguti to the Old Colony Trust Company, dated June 5, 1920, as follows: ‘Beg to say that the 90 day draft...