McDuffee v. Kelsey
| Decision Date | 01 December 1942 |
| Citation | 45 N.E.2d 258,312 Mass. 458 |
| Parties | ERNEST E. MCDUFFEE v. HARRY S. KELSEY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
October 5, 6, 1942.
Present: FIELD, C.
J., LUMMUS, QUA DOLAN, & COX, JJ.
Pleading, Civil Answer. Evidence, Presumptions and burden of proof, Foreign law. Limitations, Statute of. Bills and Notes, Maker Protest.
It may be presumed that the law of another State which controls determination of an issue at a trial is the same as the common law of this Commonwealth if such foreign law has not been called to the attention of the trial judge.
Under an answer alleging that an action upon a promissory note was "barred by the statute of limitations," but not specifying that statute of a
State where the note was payable, no question as to the effect of the statute of such State was open.
Proof of protest of an overdue promissory note was not essential to establishment of liability of the maker.
CONTRACT. Writ in the Superior Court dated August 11, 1936. The case was heard by Brown, J.
The defendant's answer included a general denial, a denial of signatures but no demand for proof of them, and an allegation that "action on said notes is barred by the statute of limitations."
The judge in his report stated that the plaintiff in his testimony identified the notes as notes of the defendant and identified the signatures of the defendant; and he found that the notes were made and executed by the defendant.
In his report, the trial judge stated that the defendant claimed "to be aggrieved by the admission in evidence of the notes and protest"; in the bill of exceptions allowed by the judge the defendant stated that he was "aggrieved by the general finding of the court . . . and by the admission of the evidence herein set forth," which was the same as that stated in the report.
The contentions of the defendant in his brief before this court were in substance that "it was necessary for the plaintiff to state concisely and clearly the grounds upon which he sought to recover in this action, and it was necessary for him to set out and allege that it was a legal note under the laws of the State of Florida"; that the "notes, not having been described in the declaration as legal notes under the laws of Florida, . . . would not be admissible in evidence under this declaration and should not have been admitted"; "that the burden of proof was upon the plaintiff to show that this action had not been outlawed in the State of Florida, in the State of New York or in any other State in which the plaintiff was resident prior to the commencement of the action, namely, August 11, 1936; . . . that the court . . . erred in making a finding upon the plaintiff's declaration for the reasons herein set forth, and for the further reason that this action could not be brought under our statute of limitations because it had already been outlawed in the State of Florida, and by virtue of our statute bars the plaintiff's recovery."
A. C. McCarthy, for the defendant. S. S. Ganz, for the plaintiff.
This is an action against one of the comakers of two promissory notes which were made in New York but were payable in Florida. The action is brought by the payee of one note and the indorsee of the other. At the trial in the Superior Court the judge found that the defendant made the notes,...
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