First Nat. Bank of Montpelier v. Bertoli

• Decision Date: 23 January 1915
• Citation: 92 A. 970,88 Vt. 421
• Parties: FIRST NAT. BANK OF MONTPELIER v. BERTOLI.
• Court: Vermont Supreme Court

92 A. 970

88 Vt. 421

FIRST NAT. BANK OF MONTPELIER

v. BERTOLI.

Supreme Court of Vermont. Washington.

Jan. 23, 1915.

Exceptions from Washington County Court; Leighton P. Slack, Judge.

Action by the First National Bank of Montpelier against Maria Bertoli. There was a verdict and judgment for defendant, and plaintiff brings exceptions. Affirmed, and motion for rehearing denied.

Erwin M. Harvey, of Montpelier, for plaintiff.

J. W. Gordon and S. H. Jackson, both of Barre, for defendant.

POWERS, C. J. The evidence in the trial now under review tended to establish facts much like those shown in First National Bank v. Bertoli, 87 Vt. 297, 89 Atl. 359. So far as here required, these may be briefly restated as follows: The defendant's husband owed a large debt at the plaintiff bank. The defendant and one Gentili executed a $5,000 note, which Bertoli used to liquidate a part of this debt. This note was joint and several in form, and payable directly to the bank, but, in fact, the defendant's undertaking was one of suretyship for her husband. The $5,000 note was renewed from time to time, and finally taken up by the defendant's sole note. This, in turn, was renewed several times both before and after Bertoli's death, and finally the defendant paid a part of the note, and gave the note in suit for the balance.

At some time after Bertoli's death the plaintiff's cashier called upon the defendant, and, in the presence of her daughter, Mrs. Beigant, asked her to pay the note. She replied that it did not belong to her to pay the note, and she was not going to pay it. Whereupon the cashier said, in substance, that the note was hers to pay, and, if she did not pay it, the bank would take her home. Mrs. Beigant gave evidence to much the same effect, with the further statement that the cashier made some reference to the insurance money that Mrs. Bertoli had received. This testimony referred to the $5,000 note, and came in under the plaintiff's exception. It is now argued that it was wholly immaterial, and was prejudicial, on account of its natural tendency to arouse the sympathy of the jury.

The ultimate fact to be determined by the jury was the true relation which Mrs. Bertoli occupied toward the indebtedness represented by the note in suit—whether she was, in fact, a principal, or, in fact, a mere surety for her husband; and this question was to be determined by her true relation to the $5,000 note and its renewals. First Nat. Bank v. Bertoli, 87 Vt. 297, 89 Atl. 359. The fact that after Bertoli's death she paid a part of the last-named note with her own money, and gave the note in suit for the balance thereof, was a circumstance tending to show that that note represented her debt, and not Bertoli's and the jury could and probably would consider it in that light. To meet this, it was competent for the defendant to show the circumstances surrounding that transaction, and to give in evidence the cashier's statements, which were calculated in some degree to influence her action. The suggestion regarding her home was one which the jury might well have considered in determining the evidentiary importance of her conduct.

There was no error in admitting the testimony of the cashier that Bertoli, at the time the original $5,000 note was given, was owing the bank a certain large sum of money. Manifestly, the defendant could not have been a surety for Bertoli unless he was a debtor; so it was essential, as one step in her defense, for the defendant to show that Bertoli was indebted to the bank. That the sum was specified did not affect the question.

Subject to the defendant's exception, the plaintiff was allowed to show that the defendant had proved the claim growing out of this transaction against her husband's es tate. Thereupon, subject to the plaintiffs exception, the defendant was allowed to explain why she did this. The admission of this was not error. The explanation seems to have been quite unnecessary, for the defendant, when she proved her claim, was only acting in strict accordance with her theory that she was a mere surety for Bertoli. And, if such was the case, it was perfectly proper for her to prove the amount she paid on account of that suretyship against the estate of the principal. The explanation seems superfluous, but harmless.

If there was any error in admitting the testimony of the cashier regarding Mrs. Bertoli's signature, the genuineness of which was admitted, it was harmless. Coolidge v, Taylor, 85 Vt. 39, 80 Atl. 1038.

The plaintiff offered in evidence a mortgage given by Bertoli to the bank on January 16, 1902, covering the Staples property, so-called, then standing in Bertoli's name, and securing past and future indebtedness. In connection therewith the plaintiff offered to show that later, on and before the original $5,000 note was given, what was left of the Staples property (a part having been released from the mortgage) was conveyed subject to this mortgage, by Bertoli and wife to a third person, and by that third person back to Bertoli and wife jointly; that the bank's mortgage thereon continued in force as long as Bertoli lived; that when the original $5,000 note was given the bank canceled and surrendered the same amount in Bertoli's notes secured under this mortgage. The argument is that, when Mrs. Bertoli first became bound, the bank discharged notes secured on real estate in which she then had an interest, and of which she became the owner by right of survivorship, and that this fact made her note binding upon her. The offer was excluded, and the plaintiff excepted.

At the former trial this mortgage and connected facts were admitted, and this was held error. First National Bank v. Bertoli, 87 Vt. at page 309, 89 Atl. 359. The case before us, however, differs somewhat from the one then presented. It then appeared that the transfer of the remainder of the Staples property...