Indiana Flooring Co. v. Rudnick
| Decision Date | 21 May 1920 |
| Citation | 127 N.E. 428,236 Mass. 90 |
| Parties | INDIANA FLOORING CO. v. RUDNICK. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; Franklin G. Fessenden, Judge.
Action by the Indiana Flooring Company against Samuel Rudnick. Verdict for plaintiff, and defendant excepts. Exceptions overruled.
Samuel D. Elmore, of Boston, for plaintiff.
M. H. Steuer, of Boston, for defendant.
The Indiana Flooring Company brought this action in the superior court against Samuel Rudnick, on two promissory notes both made by the defendant and payable to the plaintiff. The defendant's answer is general denial, payment, and the further allegation that if he ‘ever executed said notes' he made them for the accommodation of the plaintiff and without consideration. The answer does not set up either total or partial failure of consideration. At the trial the signatures to the notes were admitted. The jury found for the plaintiff for the entire amount involved.
Evidence was admitted in behalf of the defendant, but subject to the plaintiff's exception, that the notes were given in renewal of others for like amounts, the consideration of which was a contract by the plaintiff to sell to the defendant a certain quantity of ‘flooring.’ Evidence was likewise admitted subject to the plaintiff's exception, that a substantial part of the amount of lumber required to complete the quantity specified in the contract never had been delivered to the defendant.
At the close of the evidence, the defendant requested that the jury be instructed as follows:
‘If from the evidence you find that the notes were given in accordance with an agreement for lumber to be delivered in the future then the burden of proof is upon the plaintiff to show that it actually did send and deliver the lumber of the kind, quality and quantity called for by said agreement.’
This request was refused, subject to the defendant's exception.
In substance the judge instructed the jury that if they found the notes were given for the plaintiff's accommodation, they should find for the defendant; that if there was no consideration for the notes, the plaintiff could not recover; that if the notes were given for ‘a future delivery of lumber,’ which was never delivered, a like result followed. The charge then continued:
‘Here I want to call your attention to one thing very distinctly. This is not a case where they are pleading partial failure of consideration. Those cases sometimes trouble you. It is either the whole or nothing. * * * That is the claim. So don't trouble yourselves about this, as to whether the whole, every stick of lumber was delivered, but the question is, was there a consideration for the notes, and the burden is on the plaintiff to show that. It is not on the defendant to show that there was no consideration. * * * It is not for us to say that under these pleadings, for if there were a claim that only part of it was delivered, that would be pleaded in the case, and then we should have that to try, but no suggestion is made of that in this trial. So that it is the whole or nothing. Now I do not want you to go to your room and say, ‘Well, here, he admitted part of it, so we will award part, only part.’'
No exception was taken to the instructions given to the jury.
Before the trial, under St. 1911, c. 305, an...
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First State Bank of Hazen, North Dakota, a Corp. v. Radke
... ... throughout to establish that defense. Such seems also to be ... the implication in Indiana Flooring Co. v. Rudnick, ... 236 Mass. 90, 127 N.E. 428. By referring to the Negotiable ... ...
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Leonard v. Woodward
...into conformity with that prevailing as to failure of consideration, which is dealt with in the same section. Indiana Flooring Co. v. Rudnick, 236 Mass. 90, 93, 127 N.E. 428. It is in furtherance of the general principle that a negotiable instrument should be self-proving so far as is reaso......
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Leonard v. Woodward
... ... failure of consideration, which is dealt with in the same ... section. Indiana Flooring Co. v. Rudnick, 236 Mass ... 90 , 93. It is in furtherance of the ... [305 Mass. 338] ... ...
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Samuel v. Page-Storms Drop Forge Co.
...236 Mass. 500, and cases collected at page 501, 128 N. E. 785;Bacon v. George, 216 Mass. 519, 104 N. E. 382. See Indiana Flooring Co. v. Rudnick, 236 Mass. 90, 92, 127 N. E. 428. (2) The findings of fact made by the judge are no part of the record. They could have been made a part of the re......