Hale v. Rice

• Decision Date: 07 March 1878
• Citation: 124 Mass. 292
• Parties: Elijah Hale v. Edwin Rice
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

124 Mass. 292

Elijah Hale v. Edwin Rice

Supreme Court of Massachusetts

March 7, 1878

Argued January 16, 1877; January 18, 1877 [Syllabus Material] [Syllabus Material]

Middlesex Contract on three promissory notes, two for $ 3000 each, and the third for $ 1940, all dated January 1, 1868, payable to the order of the plaintiff, and purporting to be signed by the defendant. Each note was indorsed, "Interest paid to July 1, 1872." Writ dated April 1, 1874.

At the trial in the Superior Court, before Brigham, C. J., the jury returned a verdict for the defendant; and the plaintiff tendered a bill of exceptions, in substance as follows:

The defendant admitted that he made the notes in suit, together with another of the same tenor for three thousand dollars and that he wrote the indorsement above mentioned on each of them.

It appeared that the plaintiff for several years had had dealings with the firm of F. & F. Rice & Co., of Boston, which dealings ceased on July 1, 1872, at which time the firm was indebted to the plaintiff in the sum of twelve thousand dollars. The plaintiff introduced evidence tending to show that the notes in suit were made and delivered to him by the defendant in October, 1872, at the time when the defendant made a reconveyance of certain real and personal property to the plaintiff, (which had, earlier in 1872, been conveyed to the defendant by the plaintiff, the same being the plaintiff's homestead estate, and the furniture &c., at the same,) and that the plaintiff and defendant accounted together as to the indebtedness of the one to the other in payment of the balance of the firm's indebtedness to the plaintiff, a part of the same having previously been paid by the defendant, and that interest had been paid on the notes according to their tenor, up to and including January 1, 1872.

The defendant introduced evidence tending to show that the notes in suit were made and delivered by him to the plaintiff about the time (September, 1872) the plaintiff made and delivered to the defendant a valid conveyance of certain real and personal property, heretofore mentioned, and possession thereof, without any consideration therefore; that the plaintiff asked the defendant then to make the notes in suit and deliver them to the plaintiff, so he could show them to prove he had not given away his place, and that thereupon the defendant did make the notes in suit and deliver them to the plaintiff; that in October, 1872, as the result of various conversations between the plaintiff and the defendant, the defendant reconveyed said real and personal property as herein before mentioned; and that at the same time the plaintiff said to the defendant that he would deliver the notes to him, but that they were then mislaid and he could not find them.

The defendant also introduced evidence tending to show that the firm's indebtedness was settled by the firm making and delivering to the plaintiff, on July 1, 1870, four notes of that date for three thousand dollars each, payable to the order of the plaintiff; that the plaintiff had these notes in his possession from that date until April 6, 1871, when the plaintiff, at his homestead in Stowe, in this Commonwealth, handed them to the defendant voluntarily as a gift, the plaintiff saying at the time he wished the defendant to pay the plaintiff interest on the same until the plaintiff's death; that the defendant took them, has held them since, and did pay interest on them up to and including January 1, 1874, but has paid no interest, nor offered to on them since. The defendant produced these notes of July 1, 1870, at the trial, and it appeared that they were in the handwriting of the defendant; that neither of them had been indorsed, or in any way assigned, by the plaintiff at any time.

The plaintiff introduced evidence tending to show that these notes of July 1, 1870, if ever made as alleged by the defendant, had never been in the plaintiff's possession, but in the possession of the defendant ever since they were made. The plaintiff testified that when Freeman and Franklin Rice died the firm owed him twelve thousand dollars; that he never had the firm's notes in his possession, but they were kept at Boston by the firm for him; that he never gave them to the defendant, and denied the conversation testified to by the defendant and his wife in relation to the gift of those notes to the defendant. On cross-examination, he admitted that an indorsement of interest upon the firm notes was in his handwriting; that he made a gift by deed of land to George, one of his nephews, and took back an obligation to pay interest; that he had given up the notes of Freeman and Franklin Rice, taking back an obligation for the payment of interest; and the notes and obligations, being produced by the defendant, were identified by the plaintiff as the originals. The defendant then offered certain instruments in evidence, which were objected to by the plaintiff, but they were admitted by the judge, subject to the plaintiff's exception. Each of these instruments was a bond, executed to Elijah Hale by Franklin Rice and Freeman Rice, in the sum of $ 4000, dated January 1, 1849. The condition of each re cited that Hale had given up to the obligors two notes of hand of $ 2000 each, the interest being paid up to date, and stated that if the obligors should jointly and severally pay to the obligee, during his lifetime, $ 120 every six months, the obligation should be void; otherwise, to remain in full force.

It appeared that the Franklin Rice and Freeman Rice named in said paper were brothers of the defendant, and that all of them were nephews of the deceased wife of the plaintiff.

The plaintiff requested the judge to instruct the jury as follows: "If the jury find that the notes dated July 1, 1870, they being payable to the order of the plaintiff, were handed to the defendant by the plaintiff, and that the defendant took them into his possession, but that the plaintiff did not then, or at a later time, indorse, or in any way assign said notes, then the gift was not perfect." The judge refused to so instruct the jury, but did instruct them that the facts that the notes alleged to be bestowed upon the defendant by the plaintiff as a gift were payable to the plaintiff's order, and did not appear to have been indorsed by him, or assigned in writing to the defendant, were not conclusive evidence that they were not bestowed on the defendant as a gift; neither was such indorsement or assignment an act essential to constitute a gift of such notes, although facts which might be considered by the jury in determining whether there was a gift of these notes, as alleged by the defendant, or whether such formal acts would have been natural and probable between the parties. To this refusal and ruling by the judge the plaintiff excepted.

The defendant requested the judge to instruct the jury "that if the jury find that the Franklin and Freeman Rice notes of July 1, 1870, were given to the defendant, as testified to by him, and if they also find that the notes in suit were given for the same debt, or as evidence of a renewal of the old liability once discharged, then the notes in suit were without consideration." The court gave the instruction, and the plaintiff excepted.

The jury found for the defendant, and the plaintiff, being aggrieved by said rulings, instructions and refusals to rule and instruct, asks that his exceptions may be allowed.

On January 14, 1876, Brigham, C. J., overruled a motion to set aside the verdict, and made and signed upon the bill of exceptions a certificate consisting of the single word "Allowed," and restored the exceptions to the files of the Superior Court. On the same day, the exceptions were entered...