Foss v. McRae

• Decision Date: 16 February 1909
• Citation: 105 Me. 140,73 A. 827
• Parties: FOSS v. MCRAE et al.
• Court: Maine Supreme Court

73 A. 827

105 Me. 140

FOSS

v. MCRAE et al.

Supreme Judicial Court of Maine.

Feb. 16, 1909.

(Official.)

Exceptions from Supreme Judicial Court, Washington County.

Action by Mary E. Foss against Maurice E McRae and others, executors of the will of Asa T. McRae, deceased. Verdict for defendants, and plaintiff excepts. Exceptions overruled.

Action on an alleged guaranty by the defendants' testator of the payment of some 50 overdue promissory notes transferred by him to the plaintiff. The notes were given by the various promisors to Walter H. Foss, the husband of the plaintiff, and had been by him transferred to the defendants' testator, and later transferred by him to the plaintiff in settlement of matters between them. The record does not disclose the plea nor for whom was the verdict; but presumably the plea was the general issue, and that the verdict was for the defendants. During the trial the plaintiff excepted to certain rulings of the presiding justice.

The case is stated in the opinion.

Argued before WHITEHOUSE, SAVAGE, SPEAR, KING, and BIRD, JJ.

R. J. McGarrigle, for plaintiff.

John F. Lynch and H. H. Gray, for defendants.

SPEAR, J. This case comes up on exceptions to instructions given by the presiding justice to the jury. The case does not show, but inasmuch as the exceptions are by the plaintiff, we assume, that the verdict was for the defendant.

The case involved an action on the alleged guaranty by the defendants' testator of the payment of certain overdue promissory notes transferred by him to the plaintiff. To sustain her allegations the plaintiff offered in evidence a typewritten instrument bearing the signature of the defendants' testator of the following tenor.

"Machias, Me., April 11, 1907.

"This is to certify that I have this day, in a settlement of business transacted with Mary E. Foss, conveyed and sold to her a lot of notes for which I have received payment in full. And will guarantee them.

"[Signed] Asa T. McRae.

"Witness: M. E. McRae."

The defendants had seasonably given written notice to the plaintiff of their denial of the execution of this instrument, and at the trial the subscribing witness, who was one of the defendants' executors, testified that at the time of the execution and delivery of the instrument it did not contain the last four words, "and will guarantee them." There was also evidence upon both sides of this issue.

The plaintiff contended that upon this issue the burden of proof was upon the defendants; but the presiding justice instructed the jury as follows, viz:

"So the question is narrowed right down to this: Were those words, the final four words in this paper, written on there when Mr. Asa T. McRae signed that paper? And the burden is upon the plaintiff, Mrs. Foss, or her agents, who conduct the suit, to convince you by evidence that in fact and in truth those words were upon that paper when signed by Asa T. McRae; and has she done so? She claims that she has, and she first relies upon the circumstances that the words are found to be on the paper now. That is prima facie evidence that they were there when it was signed, but only prima facie. By 'prima facie' we mean that, if nothing more appeared, if that was all there was, just the paper itself, with no contradiction, it would be taken as sufficient evidence that they were there when signed; but, it...