Fernald v. Bush
| Decision Date | 07 December 1881 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Stephen Fernald v. William M. Bush & others |
Suffolk.
New trial ordered.
B. F Hayes, for the plaintiff.
A Hemenway, for the defendants.
The plaintiff brought an action of contract to recover the sum of $ 1078.14. The defendants admitted his claim, and filed a declaration in set-off for $ 1189.84, containing two counts alleged to be for the same cause of action; the one for the price of a promissory note of E. A. Mudge & Co. for that sum, sold and delivered by the defendants to the plaintiff; and the other on a promissory note signed by the plaintiff, the material part of which was as follows:
At the trial in the Superior Court, without a jury, the following facts were undisputed: On December 13, 1876, the defendants sold to the plaintiff a note of E. A. Mudge & Co. for $ 1189.84, and received therefor from him after bank hours his draft for that sum payable at sight on Bates & Albee, bankers, with whom he kept deposits of money subject to be drawn by check or draft at sight. On December 14, within an hour after the opening of the banking-house of Bates & Albee, the defendants presented the draft to them for payment, and at once received from them their check on the First National Bank of Boston for the amount thereof, and within an hour afterwards deposited this check for collection to their own credit in the National Bank of the Commonwealth, in which they were accustomed to keep their bank deposits and account. On December 15, the check was presented by the Bank of the Commonwealth to the First National Bank for payment, which was refused, and the check so dishonored was returned by the Bank of the Commonwealth to the defendants about noon. Bates & Albee had failed and suspended payment on that day, before the check was presented. Upon the return to the defendants of the dishonored check of Bates & Albee, the defendant Pinkham, after filling out ready for signature the note declared on in the second count in set-off, called on the plaintiff, obtained his signature to it, and, erasing the defendants' indorsement on the check, delivered the check to him.
As to what took place at this interview between Pinkham and the plaintiff their testimony was conflicting. Pinkham testified that he handed the check to the plaintiff face up, and said to him, "The check which we received for your draft was not paid; would like you to give me your borrowed and received for it." Pinkham also testified that at that time he knew, and did not tell the plaintiff, that Bates & Albee had failed. The plaintiff testified that Pinkham said to him. "Your draft was not paid, would like your borrowed and received for it;" that he signed the note supposing that he received his own draft in return; that he had had dealings with the defendants for several years, and supposed it was all right; that Pinkham handed him the check of Bates & Albee back up, and he put it in his pocket-book without examining it, and did not discover that it was not his own draft until he called upon Bates & Albee a few minutes afterward to inquire why the draft had not been paid. The plaintiff further testified, and it was conceded by the defendants, that from the time he gave the draft to the defendants, on December 13, up to the time of the failure of Bates & Albee on December 15, his amount of money on deposit with Bates & Albee was mach larger than the sum of all his drafts drawn against it; that neither the failure of Bates & Albee, nor the fact that their check was not presented for payment until December 15, was known to him until he called on Bates &...
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Jones v. Motorbuses
...only errors of law, and not of fact, a finding of fact may in itself be an error in law. Styles v. Tyler, 64 Conn. 432, 30 A. 165;Fernald v. Bush, 131 Mass. 591; The E. A. Packer, 140 U.S. 360, 11 S.Ct. 794, 35 L.Ed. 453;Bedlow v. New York Floating Dry Dock Co., 112 N.Y. 263, 19 N.E. 800,2 ......
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...99 Mass. 277, 280;Whitney v. Esson, 99 Mass. 308, 96 Am. Dec. 762;Weddigen v. Boston Elastic Fabric Co., 100 Mass. 422, 424;Fernald v. Bush, 131 Mass. 591, 594. It was said in Furber v. Dane, 203 Mass. 108, 112, 113, 89 N. E. 227, 228, by Sheldon, J., speaking for the court: ‘The check * * ......
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Styles v. Tyler
...55 Conn. 247, 10 Atl. 571; Kennedy v. Porter, 109 N. Y. 526, 17 N. E. 426; Bedlow v. Dry-Dock Co., 112 N. Y. 263, 19 N. E. 800; Fernald v. Bush, 131 Mass. 591. The word "errors" certainly includes such errors of fact as were at common law grounds for a writ of error coram nobis. It seems to......
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Lowell Co-operative Bank v. Sheridan
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