Jones v. Jones

• Decision Date: 10 July 1906
• Citation: 64 A. 815,101 Me. 447
• Parties: JONES v. JONES et al.
• Court: Maine Supreme Court

64 A. 815

101 Me. 447

JONES

v. JONES et al.

Supreme Judicial Court of Maine.

July 10, 1906.

Exceptions from Supreme Judicial Court, Penobscot County.

Action by Alice V. Jones against Sarah C. Jones and others, executors. Verdict for plaintiff, and defendants move for a new trial and except. Motion and exceptions sustained.

There were four counts in the declaration, one upon a promissory note for $1,500, dated Bangor, February 17, 1896, payable on demand, and purporting to be signed on the face by Silas D. Jones & Sons and on the back by Silas D. Jones. The second count was on a promissory note for $500, dated Bangor, February 8, 1901, payable on demand, purporting to be signed on the face by Silas D. Jones & Sons and on the back by Silas D. Jones. The third count was on a promissory note for $500, dated Bangor, April 14, 1900, payable on demand, purporting to be signed on the face by Silas D. Jones' Sons and on the back by Silas D. Jones. The fourth count was for money had and received.

Plea, the general issue, with the following brief statement:

"And for a brief statement of special matter of defense to be used under the general issue pleaded the said defendants further say as to the first count in the plaintiff's declaration, it being the account upon the alleged note for fifteen hundred (1,500) dollars, the defendants plead the statute of limitations, and after that their intestate did not at any time within six years next before his death promise in manner and form as the plaintiff in said first count in said writ has alleged against him.

"The defendants further say that after the making of the said several alleged promises, and after the accruing of the several alleged causes of action in the plaintiff's declaration mentioned, but before the commencement of said action, to wit, on the 8th day of July, A. D. 1904, the plaintiff suggested to and agreed with and promised the defendant Sarah C. Jones that if she, the said Sarah C. Jones, would not change her last will and testament, by the terms of which Storer W. Jones, the plaintiff's husband, was to share equally with the remaining children of the said Sarah C. Jones, it being then and there the intention of the said Sarah C. Jones to change her will, that in consideration thereof she, the said plaintiff, would accept her said promise in full satisfaction and discharge of said promises referred to, and of all claims and demands which she had against the estate of said Silas D. Jones, and that she would destroy or cause to be destroyed said alleged notes declared on in the plaintiff's declaration; and the defendants aver that said Sarah C. Jones then and there did promise the said plaintiff that she would not change her last will and testament, which promise she has ever since kept inviolate, and that thereafterwards, on the 11th day of July, A. D. 1904, the plaintiff did cause said alleged notes declared upon in the plaintiff's declaration to be destroyed in pursuance of her said promise and the terms of her said agreement entered into with the said Sarah C. Jones on the 8th day of July, A. D. 1904, as aforesaid."

The defendants also seasonably made affidavit denying the signatures of the notes and execution of the same, and gave reasonable notice to the plaintiff of their denial or intended denial of such signatures and execution in accordance with rule 10 of "rules of the Supreme Judicial Court."

The action was tried at the October term-1905, of the Supreme Judicial Court. Penobscot county. Verdict for plaintiff for $2,689.14. Defendants then filed a general motion for a new trial, and also took exceptions to rulings admitting certain testimony during the trial, and to certain instructions given to the jury.

Argued before WISWELL, C. J., and SAVAGE, POWERS, PEABODY, and SPEAR, JJ.

Louis C. Stearns, T. D. Bailey, and J. F. Gould, for plaintiff. P. H. Gillin and Martin & Cook, for defendants.

SAVAGE, J. Action to recover on three promissory notes, one dated February 17, 1696, for $1,500, one dated April 14, 1900, for $500, and one dated February 8, 1901. for $500, all purporting to be signed on the face by Silas D. Jones & Sons and on the back by Silas D. Jones, individually, and payable to the plaintiff. There is also a count for money had and received. The action is against the estate of Silas D. Jones, of whose will the defendants are the executrices. The defendants deny the execution of the notes, and particularly that the individual signature of Silas D. Jones is genuine. They pleaded the statute of limitations as to the $1,500 note. They claim that the notes never became effective for want of delivery during the lifetime of Silas D. Jones, and they assert that the plaintiff, having come into possession of the notes after the death of Silas D. Jones, voluntarily forgave the in debtedness, surrendered the notes to the executrices, and consented to their destruction, in consideration of the promise of Sarah C. Jones that she would not thereafter change the provisions of her will in favor of the plaintiff's husband, who was the son of Sarah C. Jones.

Nevertheless, the jury returned a verdict for the plaintiff for the full amount claimed. And the case now comes before us on the defendants' motion and exceptions. Of the many exceptions, only one—that relating to the delivery of the notes—is open to consideration. Many times the court has reiterated the rule that an excepting party, if he would obtain any benefit from his exceptions, must set forth enough in the bill of exceptions to enable the court to determine that the points raised are material and that the rulings excepted to are both erroneous and prejudicial. The bill of exceptions must show what the issue was, and how the excepting party was aggrieved. Error must appear affirmatively. Dennen v. Haskell, 45 Me. 430: Hovey v. Hobson, 55 Me. 256; Merrill v. Morrill, 67 Me. 70: Fairfield v. Old Town, 73 Me. 573; Johnson v. Day, 78 Me. 224. 3 Atl. 647; Nutter v. Taylor, 78 Me. 424, 6 Atl. 835; Smith v. Smith, 93 Me. 253, 44 Atl. 905, and many other cases. The bill of exceptions in this case, except in one instance to be considered later, is barren of statements to show that the matters complained of were material, or erroneous or harmful. It is not enough that the court can find all of these characteristics by studying the report of the evidence in support of the motion for a new trial, when it accompanies a bill of exceptions. The bill must be strong enough to stand alone. The court, in considering the exceptions, cannot travel outside of the bill itself. In this respect the court cannot consider the report of the evidence nor the charge of the presiding justice, unless they are made a part of the bill of exceptions. They are not so made in this case.

It will not be necessary to consider all of the questions argued by counsel. If we assume that the signature of Silas D. Jones upon the notes was genuine, and that the surrender of the notes by the plaintiff was procured by falsehood and fraud, as she now claims, there is still an insuperable difficulty in sustaining the verdict. There was sufficient evidence to warrant the jury in finding that Silas D. Jones negotiated loans at a savings bank on the days and for the respective amounts for which the notes in suit were given: that the first loan was obtained upon the note of Storer W. Jones, plaintiff's husband, and the second and third loans upon the notes of the plaintiff and her husband, all secured by the plaintiff's mortgages of her own real estate; that the first two loans were procured for the use...