Mindell v. Goldman

• Decision Date: 12 July 1941
• Citation: 35 N.E.2d 669,309 Mass. 472
• Parties: MINDELL v. GOLDMAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

309 Mass. 472

35 N.E.2d 669

MINDELL

v.GOLDMAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

July 12, 1941.

Exceptions from Superior Court, Suffolk County; P. Kirk, Judge.

Action of contract by Sarah Mindell against Lowe Goldman and Gertrude Goldman, his wife, to recover a balance alleged to be due upon a note secured by a second mortgage on land owned by the defendant Lowe Goldman. Verdict for plaintiff for $2,543.87, and defendants bring exceptions.

Exceptions sustained.

Argued before FIELD, C. J., and QUA, DOLAN, and COX, JJ.

No argument or brief for plaintiff.

S. Fishman, of Boston, for defendants.

DOLAN, Justice.

This is an action of contract in which the plaintiff seeks to recover a balance alleged to be due upon a promissory note signed by the defendants Lowe and Gertrude Goldman, who are husband and wife. The defendants' answer contains a general denial, an allegation that the note has been materially altered since it was made, and a denial of the genuineness of the signature of the witness to the note.

The note was secured by a second mortgage on land owned by the defendant Lowe Goldman. So far as here material the note, which was dated March 18, 1931, reads as follows:

‘I, Lowe Goldman, and Gertrude Goldman Promise to pay to Sarah Mindel or order the sum of Five Thousand and no/100 Dollars ($50.00 per month payable on account of principal) in three years from this date, with interest monthly at the rate of six per centum per annum during said term, and for such further time as the said principal sum, or any part thereof, shall remain unpaid.

‘Gertrude Goldman (Seal)

‘Lowe Goldman

‘Witness

‘William J. Kenney'

The body of the note is either printed or typewritten, except that the words ‘and Gertrude Goldman’ are in handwriting. The evidence would require the jury to find that the defendants signed the note before delivery to the plaintiff (they so testified), and that the consideration therefor was paid by the plaintiff to the defendant Lowe Goldman. The evidence was conflicting with respect to whether the words ‘and Gertrude Goldman’ and the signature of the witness Kenney were upon the note when it was delivered to the plaintiff. The jury could find either that the words ‘and Gertrude Goldman’ were then upon the note, or that they were inserted after its delivery without the consent of the defendants.

It is unnecessary to consider whether the evidence would warrant the jury in finding that the name of the witness Kenney was on the note when delivered to the plaintiff, because the instrument is under seal and hence, even if the name of the witness was placed upon the note after delivery, it would not enlarge or otherwise affect its character. Ford v. Ford, 17 Pick. 418, 421. To be a material alteration the change must be such as to change the legal effect of the instrument. Daniel, Negotiable Instruments, 7th Ed., § 1652. Ordinarily the addition of the name of a witness to a note would have the effect of extending the period of limitation of action thereon to twenty years after the cause of action accrued, G.L.(Ter.Ed.) c. 260, § 1, Third, and so would be a material alteration. Homer v. Wallis, 11 Mass. 309, 312, 313,6 Am.Dec. 169;Smith v. Dunham, 8 Pick. 246, 249. G.L.(Ter.Ed.) c. 107, § 148. Brannan, Negotiable Instruments Law, 6th Ed., § 125. In the present case, however, there is affixed to the instrument a seal opposite the name of the first signer, Gertrude Goldman, and it is therefore a sealed instrument as to both the signers. Proprietors of the Mill Dam Foundery v. Hovey, 21 Pick. 417, 428;District of Columbia v. Camden Iron Works, 181 U.S. 453, 460, 21 S.Ct. 680, 45 L.Ed. 948;Reeves v. Eldridg, 20 Ill. 383, 384;Muckleroy v. Bethany, 23 Tex. 163, 164; Mapes, Ryan & Co. v. Newman, 2 Ark. 469; Am.Law Inst.Restatement: Contracts & 98(2). This being so, the addition of the name of a witness thereto would not have any legal consequence other than that already attached to it as a sealed instrument, which is of itself actionable within the period of twenty years after the cause of a action accrues, under the provisions of G.L.(Ter.Ed.) c. 260, § 1, First. Clarke v. Pierce, 215 Mass. 552, 554, 102 N.E. 1094, Ann.Cas.1914D, 421. It follows that whether the signature of the witness Kenney was upon the note at the time of its delivery or was placed thereon subsequently is not material. Graham v. Middleby, 185 Mass. 349, 352, 70 N.E. 416.

We are of opinion, however, that the addition of the words ‘and Gertrude Goldman’ in the body of the instrument, if inserted after delivery to the plaintiff and without the consent of the defendants, would constitute a material alteration in the instrument, since it would operate to change the defendant Gertrude's legal position from that of an indorser to that of a maker. See G.L.(Ter.Ed.) c. 107, §§ 147, 148(4). Under G.L.(Ter.Ed.) c. 107, § 39(6), it is provided that ‘Where a signature is so placed upon the instrument that it is not clear in what capacity the person making the same intended to sign he is to be deemed an endorser.’ In La Caisse Populaire Credit Union v. Cross, 293 Mass. 190, at page 193, 199 N.E. 548, 550, the court, in interpreting the portion of the statute just referred to, said that ‘The first prerequisite to the...