Mason v. Massa

• Decision Date: 04 May 1877
• Citation: 122 Mass. 477
• Parties: Julian O. Mason v. Marcus Massa
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

122 Mass. 477

Julian O. Mason v. Marcus Massa

Supreme Court of Massachusetts

May 4, 1877

[Syllabus Material]

Suffolk. Contract against a broker to recover back money paid to him for a note of $ 650, purporting to be signed by E. J Brown, payable to the order of, and indorsed by, H. Mauthe.

At the trial in the Superior Court, before Brigham, C. J., it appeared that the signature of Brown was a forgery, and that the defendant was a note broker and well known to be such by the plaintiff. The defendant testified that he received the note from Mauthe with instructions to sell it, and a promise of a commission if such sale was effected; that Mauthe gave him a statement in writing of the consideration of the note how and for what he received it, also of the means and residences of Mauthe and Brown; that he gave the note and statement to the plaintiff who retained them from May 31, 1875, to June 3, 1875, for the purpose of making inquiries as to Brown and his responsibility; that he informed the plaintiff that he was selling the note as a broker for Mauthe and was to receive a commission; that on June 2, 1875, the plaintiff bought the note and gave the defendant a check payable to bearer for $ 650, dated June 5, 1875; and that the defendant got the check cashed for a small discount on the same day, and gave the proceeds to Mauthe and took a receipt for the same. There was other evidence tending to show that the plaintiff knew, or had reasonable cause to know, the agency of the defendant, and the name of his principal before he bought the note.

The plaintiff testified that he did not know that the defendant was acting as a broker for Mauthe; that he supposed that the defendant owned the note, although the defendant did not say so; and that the defendant said he knew the note was good.

The defendant also offered evidence tending to show that he had had many transactions in notes with the plaintiff previously, and that the plaintiff well knew that he had acted as broker in all of them.

Brown, being called by the plaintiff, testified that the defendant stated on June 3, 1875, that he had bought the day before one of his (Brown's) notes. The plaintiff called also one Baldwin as a witness, and offered to show that the defendant had exhibited to him, the latter part of May, 1875, a note of Brown's, and had offered to sell it to him, saying at the time, "The note is so good I buys it myself." The plaintiff did not offer to show that he had been informed of this conversation before he bought the forged note, and there was no evidence tending to show such information or knowledge. The defendant objected to the evidence, but the judge admitted it; and the defendant excepted.

The jury received instructions, which were not excepted to, as follows: "The question of this case is, from whom did the plaintiff understand that he was buying the note, from the defendant, or from Mauthe; the transaction of buying the note was with the defendant, and to relieve him from liability there must have occurred such a state of facts that the plaintiff understood, or ought to have understood, as a man of ordinary intelligence, that he was dealing with Mauthe through the defendant acting as his agent. If the defendant sold the note to the plaintiff, not disclosing the name of Mauthe, and if the plaintiff did not know by such disclosure, or from any other such means, that the defendant was acting as agent or broker for Mauthe, whether anything was or was not said by the defendant as to the genuineness of Brown's signature on the note, the defendant would be liable. But if, at the time, the defendant was a note broker, and did disclose to the plaintiff, in the transaction of selling the note, the name of Mauthe as his principal, or if the plaintiff from some other cause then knew that the defendant was acting for Mauthe, the defendant would not be liable whether he made or did not make any statement on the subject of the genuineness of Brown's signature on the note.

"The burden of proof is upon the plaintiff to prove that he dealt with the defendant under such circumstances as to render him liable as warrantor of the signature of Brown on the note. The plaintiff must prove this...