Freedley v. French

• Decision Date: 03 September 1891
• Citation: 28 N.E. 272,154 Mass. 339
• Parties: FREEDLEY v. FRENCH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

154 Mass. 339

28 N.E. 272

FREEDLEY v. FRENCH et al.

Supreme Judicial Court of Massachusetts, Suffolk.

September 3, 1891

COUNSEL

E.J. Jones and C.W. Cushing, for plaintiff.

Geo. L Huntress, for defendant.

OPINION

MORTON J.

The note declared on in this case was originally given to one Frances M. Freedley. It was signed by Charles W. French, was made payable to the order of Ferd. F. French, and was indorsed in blank by him, waiving demand and notice, and was given by said Charles to the said Frances for value. Long after it was overdue she transferred it to the plaintiff. The defendants are the maker and indorser, of whom the latter alone defends; and the defense set up is that in December 1884, which was after the note was due, and when it was the property of said Frances, she executed a release under seal in common with other creditors of said Ferdinand, discharging him "from all debts, demands, actions, and causes of action" which they had against him. In reply to this the plaintiff alleges that Frances Freedley (as she then was) signed the release without receiving any consideration therefor, in consequence of the false and fraudulent representations of the defendant Ferdinand or his agent Charles W. French, and that the same is not, therefore, a bar to this action. The defendant asked the court to rule that there was no evidence of fraud in obtaining the release, and to direct a verdict for the defendant. The court declined so to rule, and submitted the following questions to the jury "(1) Were the signing and delivering of the instrument in question obtained from Frances M. Freedley by false and fraudulent representations of the defendants' agent, made while acting within the scope of his agency, as to the effect and purpose of said instrument as alleged, the contents being concealed from her, and she not being negligent in the premises? (2) Did Frances M. Freedley sign and deliver the paper in question in ignorance of what it contained, not having read the same or heard it read, and being falsely informed as to its real character, contents, and provisions by the defendants' agent while acting within the scope of his agency? (3) Did Frances M. Freedley sign and deliver the instrument in question without consideration therefor? (4) Did Frances M. Freedley sign the same as a sealed instrument or without a seal?" To the first three of these questions the jury answered "Yes," and to the last answered without a seal, and the court thereupon directed a verdict for the plaintiff. Frances M. Freedley, who has become by marriage Mrs. Leavitt, was a witness for the plaintiff, and testified as follows: Charles W. French presented the paper to her for signature, and said that his brother was embarrassed, and, unless his creditors signed the paper, giving him more time, he could not keep on with his business. If he went on with his business it would be all right; his debts and obligations would be paid. That he would not be able to go on with his business unless his creditors signed the paper giving him time, but if they did it would be all right. She testified that she thought the paper was not presented to her till after the conversation, and that she took it to her desk, and signed it; but afterwards said she did not remember whether Mr. French placed it on the desk or whether she did. The paper was not read to her, and she did not examine it, and Mr. French did not state to her that it was a release of the indorsers, or that it was a release of Ferdinand, and the first she knew that it was claimed to be a release was after the suit was brought. In answer to the question, "Did he [Mr. French] say anything about that paper before he left the house?" she replied that he said the interest would be paid, and asked if she wanted it paid annually or semi-annually, and she said it made no difference, so it was paid; and in answer to the question, "What did he say about that paper before you signed?" she said, "The same as I have said." She also testified that the only reason for her signing it was simply that Mr. French asked her, and that she would not have signed the paper if she had known it was a release of the debt. On cross-examination she said that she could not tell whether Mr. French handed her the paper or not; that she only saw it to sign it; that she couldn't remember whether the paper was turned over so that she could only see the signatures when she signed; that she didn't know that Mr. French made...