International Trust Co. v. Wilson
| Decision Date | 13 March 1894 |
| Citation | 161 Mass. 80,36 N.E. 589 |
| Parties | INTERNATIONAL TRUST CO. v. WILSON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
R.M. Morse and C.E. Hellier, for plaintiff.
S.L Whipple and W.R. Bigelow, for defendant.
The defendant does not now contend that a presiding justice has no power to order a verdict if the jury have returned their findings upon questions submitted to them but have separated without arriving at a verdict. Such a course is warranted by the doctrine that, although a jury have separated, they may be ordered to correct an incomplete and defective finding when the circumstances are such as to make it certain that justice is done by the order. Mason v. Massa, 122 Mass. 477, and cases cited; Spencer v. Williams (Mass.) 35 N.E. 88. When the law applied to the findings made by the jury and to the evidence applicable to the remaining issues gives to one party or the other, as matter of law, a clear right to a verdict, the jury may properly be directed to render that verdict. In such a case it is certain that justice must be done by the order, and that the right of the parties to have disputed facts found by the jury, and the law of the trial revised by the court of last resort, is not curtailed. As held in Roberts v. Rockbottom Co., 7 Metc. (Mass.) 46, 49, the presiding justice "had authority, at any time before verdict affirmed and recorded, to vary his instruction to the jury in matter of law, and the jury were in duty bound to be governed by it."
2. If as the defendant contends, the court had declined to permit the jury to consider the form of the notes upon the question whether the plaintiff should be charged with notice that there was an agreement between Cassells and the defendant limiting Cassells' authority to borrow money for the firm to loans on notes payable to and indorsed by the defendant, such a ruling would have been wrong. But, as we construe the bill of exceptions, the jury were permitted to consider the form of the notes in connection with all the evidence, but were, in effect, also instructed that the form of the notes was not, as matter of law, conclusive upon the question. The defendant requested the court to instruct the jury that the form of the notes "was notice to the plaintiff," and that it "gave notice to the plaintiff." This would have been in substance a ruling that the form of the notes was, as matter of law, conclusive in favor of the defendant upon the question, and would have been contrary to the authorities. The true rule was that the jury might consider the form of the notes in connection with all the other evidence in determining the question whether they should in fact charge the plaintiff with notice of a limitation of the authority of Cassells to borrow money for his firm. Atlas Nat. Bank v. Savery, 127 Mass. 75, 77; Freeman's Nat. Bank v. Savery, Id. 78; Thompson v. Hale, 6 Pick. 259; Wait v. Thayer, 118 Mass. 473, 478. In Bank v. Law, 127 Mass. 72, the defendants' indorsement being above that of the payee made it apparent in the light of St.1874, c. 404, that their liability was conditional and secondary, and therefore prima facie, at least, for the accommodation of the maker. In that case the inference was made necessary by the effect of the statute, but the decision has no bearing in support of the defendant's contention that the inference of notice of a limitation upon the authority of one partner to borrow money for the use of his firm should have been held a necessary inference from the form of...
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