Greeley v. Greeley

• Decision Date: 08 July 1920
• Citation: 110 A. 637
• Parties: GREELEY v. GREELEY.
• Court: Maine Supreme Court

110 A. 637

GREELEY

v. GREELEY.

Supreme Judicial Court of Maine.

July 8, 1920.

Report from Supreme Judicial Court, Androscoggin County, at Law.

Action by Susanne Greeley against Fred L. Greeley, as executor. On report from the Supreme Judicial Court, at law. Judgment directed for plaintiff.

See, also, 118 Me. 491, 107 Atl. 296.

Argued before SPEAR, PHILBROOK, DUNN, MORRILL, WILSON, and DEASY, JJ.

McGillicuddy & Morey, of Lewiston, for plaintiff.

White, Carter & Skelton, of Lewiston, and George C. Wing, of Auburn, for defendant.

DUNN, J. At the basis of this suit there lies a nonnegotiable promissory note. It reads:

$10,000. Lewiston, Maine, Sept. 5, 1912.

"For value received, I promise to pay Susanne Greeley the sum of ten thousand dollars, without interest. Cyrus Greeley."

In her writ, framed against defendant, as executor of Mr. Greeley's will, plaintiff sets out that the note remains unpaid, excepting as to the sum of $100, indorsed at a time when the maker was living. At the trial there was concession that the notary, residing outside this state, before whom preliminary proof of claim was sworn, had authority to administer oaths. Save as to that, it devolved on plaintiff to prove her case, step by step. Genuineness of signature to the instrument is beyond dispute. Body of the note is in handwriting other than that of the signer, but the record does not indicate whose. Nor is it shown by whom indorsement of partial payment was made. Supplemental to the presumption, arising from her actual possession of the note, that it was delivered to her on the day of its date, there is uncontradicted evidence that, for a year at least, just before the death of the maker, the note was with payee's agent for safe-keeping. The prepositional phrase, "For value received," which introduces the promise relied on, bespeaks that material cause moved the maker to give the note existence, and affords presumptive evidence of consideration. Bourne v. Ward, 51 Me. 191; Small v. Clewley, 62 Me. 156, 16 Am. Rep. 410; Morrison v. Brown, 84 Me. 82, 24 Atl. 672; Palmer v. Palmer, 112 Me. 149, 91 Atl. 281; Palmer v. Blanchard, 113 Me. 380, 94 Atl. 220, Ann. Cas. 1917A, 809. But defendant offered evidence tending otherwise. Against such evidence plaintiff introduced other evidence substantiating the life and essence of her cause.

A promise, not under seal, must be supported by a legal consideration. An instrument given without consideration does not create any obligation in favor of the payee named therein. Corlies v. Howe, 11 Gray (Mass.) 125, 71 Am. Dec. 693. As between the immediate parties, or parties having the same relative rights, the consideration of a simple contract may be the subject of inquiry. Folsom v. Mussey, 8 Me. (8 Greenl.) 400, 23 Am. Dec. 522. A promissory note occupies no higher sphere than any other record of a contract in writing. Oral evidence is admissible, as between the original parties, to show that a writing in the form of a negotiable instrument, and of which there has been manual tradition, did not in fact become a binding obligation. Burke v. Dulaney, 153 U. S. 228, 14 Sup. Ct. 816, 38 L. Ed. 698; Sturtevant v. Randall, 53 Me. 149; Smith v. Morrill, 54 Me. 48; Bradford v. Prescott, 85 Me. 482, 27 Atl. 461. This rule does not impinge the principle that a writing cannot be varied or contradicted by parol. The distinction is that evidence to vary the terms of a written contract is not admissible, but evidence that there is no agreement at all is admissible. Ware v. Allen, 128 U. S. 590, 9 Sup. Ct. 174, 32 L. Ed. 563; Wilson v. Powers, 131 Mass. 539.

Burden of making proof of consideration is on the plaintiff. Small v. Clewley, supra; Huntington v. Shute, 180 Mass. 371, 62 N. E. 380, 91 Am. St. Rep. 309. She must prove that valuable consideration furnished motive or inducement for the note. Maynard v. Maynard, 105 Me. 567, 75 Atl. 299. The parties did not testify. No person gave evidence from personal knowledge of the original affair. No one was called who could bear witness that defendant's testator had specifically told him about it. Maker and payee of the note were cousins, in degree once removed. He was of advanced years and in easy financial situation; she, a Maine girl grown to womanhood, employed in Rhode Island as school-teacher. For years, while at home through vacation seasons, it was customary for her to visit the Greeleys. A sister of plaintiff testified that, on one day some 10 months after the date of the note, and soon after the making of his will, Mr. Greeley, in acquainting her with the provisions of a voluntary trust created by him for her benefit, said, incidentally:

"I esteem you and Susanne before my other relatives. And, forasmuch as Susanne has promised to hold herself in readiness to come to me in my last days, whenever I may request, I have made provision for her."

This witness was already designated to receive, in addition to the trust, a legacy under decedent's will; the trust and legacy together eventually investing her with money equal in amount to that called for by the note. Susanne is not mentioned in that will. Of trust she does not appear as beneficiary.

Proof there is none of provision differently from the note for her. Testator's cashbook, so a witness said, is without entry concerning the note. One would scarcely expect such transaction to be set down in writing among cash receipts and disbursements, unless it had immediately to do with money. This note had not yielded cash to him who made it, and he had not been called upon to pay out money in redemption of the promise which it carried. It, therefore, would seem to be yet without dignity to be listed with cash items. There is significance in the testimony of the witness that he failed, on careful examination, to find entry on the cash-book corresponding to the purported partial payment on the note. The entry may have been omitted by mistake; perhaps by design, as one not related to business dealings; and it is possible, though it seems improbable, that it may have been in form which he did not recognize and identify. But mere absence of the entry does not counterbalance affirmative proof in the case. Another sister of the plaintiff testified, though not so minutely as the first, that Mr. Greeley told her of his affection for Susanne, of her promise to come to him as he neared life's end, and that he had provided for her.

Defendant argues that the testimony of these sisters tasks credulity; that their stories apparently are designed so exactly to fit imperative requirement as to make the utterance of each its own refutation. Not so. There is precision in their statements, but precision is entirely consistent with the most scrupulous veracity, and truth naturally weaves a fine and closely fitting web. Their testimony impresses belief. From the tenor of Mr. Greeley's words, as reflected in plaintiff's portrayal of this case, inference is warranted that, in speaking of provision made by him for...