Fletcher v. Sturtevant

• Decision Date: 05 March 1920
• Citation: 235 Mass. 249,126 N.E. 428
• Parties: FLETCHER v. STURTEVANT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

235 Mass. 249

126 N.E. 428

FLETCHER

v.STURTEVANT et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 5, 1920.

Appeal from Municipal Court of Boston, Appellate Division.

Action by Elizabeth A. Fletcher against L. J. Sturtevant and R. M. Sturtevant, resulting in rulings for defendant. The case was reported to the Appellate Division of the Municipal Court of the City of Boston, which dismissed the report, and plaintiff appeals. Order dismissing report affirmed.

H. G. Fletcher, of Boston, for appellant.

Winfield F. Prime, of Boston, for appellees.

BRALEY, J.

The two promissory notes in suit, payable on demand, are signed on the face by the defendant L. J. Sturtevant, and on the back by R. M. Sturtevant, who alone defends and to whom reference will be made as the defendant. It was decided in Union Bank v. Willis, 8 Metc. 504, 41 Am. Dec. 541, that where as in the case at bar the defendant before delivery signs on the back of the note he is a joint and several maker or promisor, and in Allen v. Brown, 124 Mass. 77, that parol evidence is inadmissible to show that this was not the real contract. But St. 1874, c. 404, Pub. Sts. c. 77, § 15, required notice of nonpayment to all persons becoming parties to promissory notes payable on time by a signature in blank on the back thereof, the same as if they were indorsers.

A promissory note payable on demand, however, is not within the statute (Hitchings v. Edmands, 132 Mass. 338), and the defendant would not have the rights of an indorser, nor could he be considered as such, if it were not for St. 1898, c. 533, § 63, now R. L. c. 73, § 80, in force when the notes were given, which provides that a person placing his signature upon an instrument otherwise than as a maker, drawer, or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity (Brooks v. Stackpole, 168 Mass. 537, 47 N. E. 419;Toole v. Crafts, 193 Mass. 110, 111, 78 N. E. 775,118 Am. St. Rep. 455). But even if he is treated as maker, the notes were payable at once, and more than six years having elapsed before the action was begun the statute of limitations (R. L. c. 202, § 14) would be a bar, as the partial payments made by L. J. Sturtevant which interrupted the running of the statute as to him were not binding on the defendant. Fenno v. Gay, 146 Mass. 118, 15 N. E. 87;Peirce v. Tobey, 5 Metc. 168;Balcom v. Richards, 6 Cush. 360;Faulkner v. Bailey, ...