Lennon v. Cohen
| Decision Date | 20 September 1928 |
| Citation | 264 Mass. 414 |
| Parties | PATRICK O. LENNON v. MAX WALDO COHEN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
January 12, 1928.
Present: RUGG, C.
J., BRALEY, CROSBY PIERCE, & CARROLL, JJ.
Judgment. Practice Civil, Action against defendants jointly liable; Plea in abatement; Auditor: findings of fact; Requests and rulings Findings by judge; Exceptions.
Evidence, Judicial notice, Foreign law, Presumptions and burden of proof. Constitutional Law, Equal protection of law, Full faith and credit, Due process of law. Supreme Judicial Court. Limitations, Statute of. Pleading, Civil, Answer. Conflict of Laws. Bills and Notes, Indorser.
A promissory note made by a New York corporation payable to its own order was indorsed by it, by C and by S, and was discounted by a bank all within the State of New York. The note not having been paid at maturity, an action was brought on it in New York in the name of L for the benefit of the bank against the corporation and C, in which judgment was obtained against both defendants jointly. Thereafter an action was brought by L in this Commonwealth upon the New York judgment against C, as the only defendant within this Commonwealth, neither S nor the corporation being made parties. The defendant filed an answer in set-off, alleging that S was the real plaintiff in interest and making claim for breach of an alleged agreement between him and S in the formation of the corporation. The action was referred to an auditor, who found that it was not brought by S, or for his use or benefit; and refused to find that collusion existed between the plaintiff and S to compel the defendant to pay the entire amount of the note. The trial judge, hearing the case without a jury, found for the plaintiff. Held, that
(1) Whatever interest S had as a coindorser of the note did not affect the right of the plaintiff to recover against the defendant;
(2) Requests by the defendant for rulings, that S had a beneficial interest in the action; that such collusion existed; and that the action should be dismissed because "the real party in interest, . . . [the bank] now having possession of the said note and not having surrendered the same, the said note is an outstanding liability which is being enforced against . . . [S], the whole thereby resulting in a fraudulent conspiracy between . . . [the plaintiff and the bank] to defraud the defendant . . . providing this judgment is now enforced," properly were refused;
(3) Under G.L.c. 227, Section 15, the action could be maintained against the defendant alone;
(4) No right of the defendant under the Fourteenth Amendment to the Constitution of the United States was affected by the present action;
(5) Since the trial judge properly might have found that S was not beneficially interested in the present action, no demand of the defendant against S could be set off against the plaintiff, and the answer in set-off could not be considered.
St. 1926, c.
168, requiring the courts to "take judicial notice of the law of the United States or of any State, territory or dependency thereof or of a foreign country . . .," does not require this court to take judicial notice of a question of foreign law not touching the jurisdiction of the court, raised for the first time at the argument in this court.
That statute has not changed the established practice regarding the alleging of exceptions under G.L.c. 231, Section 113, nor has it changed the evidentiary or legal nature of a law of a foreign jurisdiction: there can be no review by this court of such a law unless a ruling thereon is made by the trial court which is brought to this court by exception or some other recognized method; and where no question was raised by the defendant at the trial of the action above described as to the effect of a New York statute entitled "Limitation of Action upon
Judgment," such question could not be raised in this court in support of an argument that the trial judge erroneously refused a ruling that "upon all the evidence the plaintiff is not entitled to recover in this action."
A statute of limitations, whether it limits the time before, or the time after, the occurrence of a specified event, within which an action can be maintained, must be pleaded expressly by a defendant in his answer: if it is not so pleaded, it is deemed to be waived by him and not open to him in defence; and, a New York statute of that nature not having been pleaded by the defendant in the action above described, and nothing appearing concerning it in the record thereof, the defendant was not entitled in this court to rely upon it under the full faith and credit clause, art. 4, Section 1, of the Constitution of the United States.
Subsequent to the entry of the New York judgment, and previous to the commencement of the action above described, S paid a substantial sum of money on the note to the bank, which was then the holder and owner of it. The defendant testified before the auditor that he was induced to indorse the note by S, who said that he would pay it and that the defendant would not have to pay anything on it. No findings were made by the trial judge as to the rights and relations of the defendant and S between themselves. The judge ruled that under the law of New York payment of a note, in whole or in part, by a subsequent indorser does not discharge the liability of a prior indorser. The finding by the judge for the plaintiff was for the entire amount claimed to be due on the New York judgment without the deduction sought by the defendant of the sum paid by S. Held, that
(1) The full faith and credit clause, art. 4, Section 1, of the Constitution of the United States, did not prevent the deduction of such payment by S;
(2) The rights and relations of the defendant and S as between themselves must be determined by the law of New York, under which indorsers were prima facie liable in the order in which they indorsed, whether or not they were accommodation indorsers;
(3) The judge properly might disregard the defendant's testimony concerning the rights and relations of the defendant and S, and find that the order of their indorsements fixed their liability; and in such circumstances, under the law of New York, the defendant could not claim in the present action the benefit of payments made by S;
(4) The burden was on the defendant to establish his right to the deduction claimed; and the judge was not required as a matter of law to rule that he had sustained that burden;
(5) The finding by the judge for the plaintiff imported a finding of all facts, permissible in any view of the evidence, necessary to support a conclusion adverse to the defendant's contention: a finding for the defendant was not required;
(6) The finding by the judge could not be said to be wrong as a matter of law; and no error appeared.
CONTRACT. Writ dated August 12, 1924. The action was referred to an auditor and thereafter was heard in the Superior Court by Bishop, J., without a jury. The pleadings, material evidence, rulings given, and rulings requested by the defendant and refused by the judge, are described in the opinion. The defendant in his answer in set-off alleged that Sherman was the real plaintiff in interest, and made claim for breach of an agreement between him and Sherman in the formation of The Leather & Textile Products
Company of New York. The defendant testified before the auditor that he was induced by Sherman to indorse the note referred to in the opinion on Sherman's statement that it was
The judge found for the plaintiff in the sum of $11,048, and the defendant alleged exceptions.
P.H. Kelley, for the defendant. W.J. Barry, for the plaintiff.
This is an action of contract on a judgment obtained by the plaintiff in the Supreme Court of the State of New York against the defendant Cohen and The Leather & Textile Products Company of New York as joint debtors. The Leather & Textile Products Company, hereafter called the corporation, is not made a party defendant in the present action, which is brought against Cohen as the sole defendant within this jurisdiction. The plaintiff's declaration is framed on the New York judgment and sets out a copy of it. The defendant's answer pleads (1) merger of the judgment in an execution and payment thereof, (2) levy by the plaintiff of the execution on a large amount of property and a large amount of property under attachment on which the plaintiff intends to levy, and (3) nonjoinder of the corporation as joint defendant. The defendant also filed a long answer in set-off, all of which depends upon the basic averment that one Sherman is the real plaintiff in interest. The case was referred to an auditor, who made a comprehensive report. It then came on to be heard before the court without a jury. The plaintiff introduced the auditor's report and rested. The defendant testified in his own behalf as to his relations to the corporation and to Sherman. Undisputed facts seem to be that the New York judgment was founded on a note made by the corporation to its own order, indorsed by it, by the defendant and Sherman, and discounted by the Columbia Bank and the proceeds used by the maker, all within the State of New York. The maker of the note was a corporation organized under the laws of New York and having no place of business in this Commonwealth. The note, being unpaid after maturity, was turned over by the
Columbia Bank to an attorney for the purpose of bringing action on it, which was commenced in the name of the present plaintiff in the New York court. At the trial the defendant was in attendance and verdict was rendered for the plaintiff. The present action...
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