Medford v. Wolfson

• Decision Date: 27 May 1930
• Citation: 271 Mass. 292,171 N.E. 460
• Parties: FIRST NAT. BANK IN MEDFORD v. WOLFSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

271 Mass. 292

171 N.E. 460

FIRST NAT. BANK IN MEDFORD

v.WOLFSON.

Supreme Judicial Court of Massachusetts, Middlesex.

May 27, 1930.

Exceptions from Superior Court, Middlesex County; Frederic B. Greenhalge, Judge.

Action by the First National Bank in Medford against Samuel J. Wolfson. The court found for plaintiff, and defendant brings exceptions.

Exceptions sustained. Judgment for defendant.

L. G. Brooks, of Boston, for plaintiff.

E. O. Proctor and Q. I. Abrams, both of Boston, for defendant.

SANDERSON, J.

This is an action of contract to recover upon a promissory note made by the R. & W. Realty Company, dated May 7, 1927, and payable to the order of the plaintiff, upon which before delivery the name of Isaac Rosenblatt was indorsed, and under that the name of the defendant. Above the two signatures on the back of the note were printed the words ‘Waiving Demand, Protest and Notice of Non-Payment.’ R. & W. Realty Company was a corporation. Each of the individuals whose names were on the back of the note owned approximately half of its stock, Rosenblatt being its treasurer and the defendant its president. When the application was made the plaintiff's directors authorized a loan to the corporation upon its note with the indorsements of the two individuals. The money was loaned to assist the corporation in financing the construction of a building. There was no demand, protest or notice of nonpayment so far as the defendant is concerned, and unless he is bound by the printed waiver on the back of the note the plaintiff cannot recover.

The trial judge ruled, subject to the defendant's exception, that the printed words of waiver, having been upon the instrument prior to its execution as a note, are embodied in it and are binding upon the defendant under the statute, and found for the plaintiff. G. L. c. 107, § 133, provides: ‘Where the waiver is embodied in the instrument itself it is binding upon all parties; but where it is written above the signature of an endorser it binds him only.’ Section 18 provides that in certain named section ‘the following words, unless the context otherwise requires, shall have the following meanings: * * * ‘Written’ includes printed, and ‘writing’ includes print.'

The negotiable instruments act, G. L. c. 107, § 86, provides: ‘A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an endorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity.’ Toole v. Crafts, 193 Mass. 110, 78 N. E. 775,118 Am. St. Rep. 455;Fourth National Bank of Boston v. Mead, 216 Mass. 521, 104 N. E. 377, 378,52 L. R. A. (N. S.) 225;Fletcher v. Sturtevant, 235 Mass. 249, 252, 126 N. E. 428. ‘The purpose of the negotiable instruments act was to make uniform throughout the United States the law upon commercial paper by means of the adoption by the legislatures of the several states and by Congress of substantially identical statutes. * * * It ought to be interpreted so as to be a help and not a hindrance to the easy ascertainment of the rights and liabilities of the several parties to commercial paper.’ Fourth National Bank of Boston v. Mead, 216 Mass. 521, 523, 524, 104 N. E. 377,52 L. R. A. (N. S.) 225.

G. L. c. 107, § 91, provides that as respects one another indorsers are liable prima facie in the order in which they indorse, but evidence is admissible to show that as between or among themselves they have agreed otherwise. There was no finding that the indorsers signed as joint parties or intended to be bound otherwise than in the order in which they indorsed. Bamford v. Boynton, 200 Mass. 560, 562, 86 N. E. 900. In Weeks v. Parsons, 176 Mass. 570, 575, 58 N. E. 157, the finding was made that it was intended and understood that the indorsements were to be joint and not several. It is unnecessary to decide whether the rights of the parties would be the same if they had been found to have entered into a joint undertaking as indorsers. The word ‘instrument’ refers to one that is negotiable, G. L. c. 107, § 18; and to be negotiable the instrument must conform to the statutory requirements. G. L. c. 107, § 23. If the waiver appears among the terms preceding the signature of the maker, and to which he subscribes, the first part of section 133 applies. In contrast to this part of the section is the provision relating to a waiver above the name of an indorser which binds him only. The indorsement must be written on the instrument itself or upon a paper attached thereto. G. L. c. 107, § 54. The second part of section 133 refers to a waiver above the signature of any such indorser. Parties to a promissory note may make as part...