Glidden v. Chamberlin
| Decision Date | 23 February 1897 |
| Citation | 167 Mass. 486,46 N.E. 103 |
| Parties | GLIDDEN v. CHAMBERLIN et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Edwin B. Hale and Jabez Fox, for plaintiff.
Harriman & Daggett and G. Philip Wardner, for defendant Chamberlin.
Clarence F. Eldredge, for defendant Spofford.
We will first consider the exceptions taken by the defendant Spofford.
1. The note was rightly admitted in evidence. The defendant's indorsement admits the signature and capacity of every prior party. Bank v. Caverly, 7 Gray, 217; Byles, Bills *155; 1 Daniel, Neg.Inst. §§ 669a, 675, 676. This includes the existence and capacity of a firm (Dalrymple v Hillenbrand, 62 N.Y. 5), and by the same reasoning the existence and capacity of a corporation.
2. The evidence offered as to the law of New York respecting usury was rightly excluded. The contract between the selling indorsers and the plaintiff was a Massachusetts contract, and is governed by the laws of this commonwealth. Williams v Wade, 1 Metc. (Mass.) 82; Slacum v. Pomeroy, 6 Cranch, 221; Lee v. Selleck, 33 N.Y. 615; Greathead v. Walton, 40 Conn. 226; 1 Daniel, Neg.Inst. § 899.
3. The presiding justice instructed the jury that there was no evidence from which they would be justified in finding that the notice of dishonor which the law requires was given to either of the defendants. The question remains as to the alleged waiver of such notice, by subsequent unqualified promise to pay the note, with knowledge that no notice such as the law requires of the nonpayment of the note had been given to him. There is no doubt that an indorser's liability may be established by proof of an unqualified promise to pay, or other unqualified admission of liability, made after a failure to give due notice to him of the dishonor, if he had knowledge of all the material facts. Hobbs v. Straine, 149 Mass. 212, 21 N.E. 365; Parks v. Smith, 155 Mass. 26, 28 N.E. 1044. The defendant Spofford now argues that his alleged promise was before he knew that notice had been sent to him. It seems probable that this view was not presented at the trial, and that it is not now open. But, however this may be, the evidence would well warrant a finding that he then had this knowledge. He testified that he had received no notice; and from the other evidence the jury might find that the proper time for the notice to come, if it had been duly sent, had passed, especially as he made no suggestion to the contrary at the trial. The fifth and sixth requests for instructions were properly omitted to be given in terms, because it was not necessary for the plaintiff to show that the defendant knew that he was released from liability for want of due notice of the dishonor. It was enough if he knew the fact that no notice had been sent to him, without knowing the legal effect of such omission. Bank v. Ashworth, 105 Mass. 503; Matthews v. Allen, 16 Gray, 594; Givens v. Bank, 85 Ill. 444; 2 Daniel, Neg.Inst. § 1148. The rule is the same in case of a new promise by an infant after becoming of age. Morse v. Wheeler, 4 Allen, 570.
4. In respect to the special agreement declared on in the plaintiff's second count, direct evidence was introduced without objection tending to prove that the plaintiff had agreed, as a part consideration for it, to go to New York, and undertake to bring suit against the maker and the first indorsers, and use his best effort to collect the note; and the court instructed the jury that, if the plaintiff so agreed, and failed to do so, such failure would not be an evidence of the contract, and that the plaintiff could recover the amount claimed in said count up to the time of the trial, after deducting therefrom any damages which the jury found the defendants had sustained by reason of such failure. But the defendant excepted to the exclusion of evidence that at the time the note was purchased of the defendant by the plaintiff he held the note in his possession for several days, and agreed to look up the responsibility of the makers, and did so, and said that they were all right, and properly good, and he would take the note. This evidence was properly excluded. The note was bought by the plaintiff in March, 1893, and the agreement declared on was dated July 8, 1893. The evidence offered had no legitimate tendency to prove that at the latter date the plaintiff agreed to do the things asserted.
5. The defendant contends that the court erred in allowing the plaintiff to recover on the second count to the time of the trial. No such point was taken at the trial. But the ruling was right. Union Inst. for Savings v. City of Boston, 129 Mass. 82; Bowers v. Hammond, 139 Mass. 360, 31 N.E. 729; Lamprey v. Mason, 148 Mass. 231, 19 N.E. 350; Schmidt v. Bank, 153 Mass. 550, 27 N.E. 595.
We come now to the exception taken by the plaintiff in respect to the liability of the defendant Chamberlin. The only question saved is whether the plaintiff had any evidence for the jury to show that Chamberlin had received notice of the dishonor of the note, or that he had waived notice thereof. The notarial certificate did not show any notice to either of the defendants, and there was no evidence of such notice to Chamberlin except from his subsequent conversations with the plaintiff's attorney, and from the fact of his entering into the subsequent agreement which is declared on in the second count. These conversations included no direct admission by Chamberlin that he had received such notice, and no direct acknowledgment of liability or promise to pay. Instead of calling somebody to testify that such a notice was sent or given to Chamberlin, the plaintiff wished to ask the jury to infer this fact from the conversations and the fact of the subsequent agreement, or else to find a waiver of such notice. A distinction is sometimes taken between evidence which will warrant an inference that due notice of dishonor was in fact given and evidence of a waiver of the omission to give such notice. This distinction was adverted to in Andrews v. Boyd, 3 Metc. (Mass.) 434, where the evidence was held sufficient to show a waiver, if not to warrant a finding of actual notice. The decisions which go furthest in admitting circumstances to go to the jury as evidence of actual notice have been criticised in 1 Pars. Bills & N. 616, and 2 Daniel, Neg.Inst. § 1160. If circumstantial evidence alone is relied on, it may often be easier to establish a waiver than the fact of actual notice but the general considerations which weigh in determining the sufficiency of such evidence are much alike in both cases. In this commonwealth, where one is under no existing liability upon a contract, either because the contract was made during infancy, or by reason of the statute of limitations, or of a discharge in insolvency, or because his name has been forged, or signed without authority, or for want of demand or notice of dishonor to an indorser of a bill or note, and it is sought to establish a...
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