Levi v. Rubin

• Decision Date: 03 March 1922
• Citation: 134 N.E. 234,241 Mass. 40
• Parties: LEVI v. RUBIN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

241 Mass. 40

134 N.E. 234

LEVI

v.RUBIN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 3, 1922.

Exceptions from Superior Court, Suffolk County; George A. Sanderson, Judge.

Action by L. S. Levi against Max D. Rubin and others, alleged to be doing business as the American Iron & Metal Company, on a note purporting to be signed by such company and to be indorsed by other defendants. Verdict against the defendant Frank Herschman, and he brings exceptions. Exceptions overruled.

The answer of the defendant Herschman consisted of a general denial, a denial that he did business under the name and style of the American Iron & Metal Company, a denial of the genuineness of all the signatures, and especially of the indorsements and an allegation that if he ever owed plaintiff anything it had been paid. Defendant moved for a directed verdict and also requested rulings that there was no sufficient evidence that he ever indorsed or authorized the indorsement of the note and no sufficient evidence of any adoption or ratification on his part of the indorsement of his name on the note. The motion nad requests were denied and defendant excepted. On the return of the verdict the court asked the jury whether they found that Herschman signed the note personally and the foreman answered that it was their opinion that he signed it personally.

Samuel Sigilman, of Boston, for plaintiff.

Clarence F. Eldredge, of Boston, for defendant Frank Herschman.

BRALEY, J.

The answer having specially denied the genuineness of the defendant Herschman's signature, the plaintiff could not recover unless he introduced evidence which would warrant the jury in finding that the name ‘F. Herschman’ appearing as an indorser on the promissory note declared on was affixed by him or by his authority. R. L. c. 173, s. 86. True v. Dillon, 138 Mass. 347;Boles v. Harding, 201 Mass. 103, 106, 87 N. E. 481. The record recites that ‘several genuine signatures of the defendant were introduced in evidence as standards and submitted to the jury.’ The defendant however asked the court for a directed verdict, and to rule that ‘there is no sufficient evidence that this defendant ever indorsed or authorized the indorsement of the note in suit, sufficient for the plaintiff to recover.’ The motion and request were denied rightly. It is argued that the proof failed because there was no affirmative evidence for the jury of the genuineness of the defendant's signature. While the...