Mindell v. Goldman
| Decision Date | 12 July 1941 |
| Citation | 35 N.E.2d 669,309 Mass. 472 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | SARAH MINDELL v. LOWE GOLDMAN & another. |
April 8, 1941.
Present: FIELD, C.
J., QUA, DOLAN & COX, JJ.
Bills and Notes Alteration, Sealed note, Attested note, Construction Signature, Indorser, Maker. Contract, Under seal. Limitations, Statute of. Evidence, Presumptions and burden of proof.
A promissory note bearing a seal opposite the signature of the first of two signers was as to both a sealed instrument respecting which the period of limitation of action was twenty years under G L. (Ter. Ed.) c. 260,
Section 1, First.
The addition of the signature of a witness on a sealed promissory note after delivery and without the consent of the maker would not constitute a material alteration thereof.
The language of a promissory note, reading, "I [naming an individual] promise to pay," and signed by that individual and another would be ambiguous and the capacity in which the second individual signed would not be "clear" within G. L. (Ter. Ed.) c. 107, Section 39 (6), and under that statute he would be an indorser.
In a promissory note signed by two individuals but reading, "I [naming one individual] promise to pay," the addition, after delivery and without the consent of the signers of the name of a second individual before the word "promise" would change the capacity of the second individual from an indorser to a maker and would be a material alteration of the note within G. L. (Ter. Ed.) c. 107, Section 148, avoiding the instrument under Section 147.
In an action upon a promissory note, where a defence was that after delivery the note had been materially altered without the defendant's consent, the burden was on the plaintiff to prove that the note was in the same condition at the time of delivery as it was at the time of the trial, and the plaintiff in this respect was not aided by any presumption.
CONTRACT. Writ in the Municipal Court of the City of Boston dated February 10 1938.
Upon removal to the Superior Court, the action was tried before Kirk, J., who, after the jury had answered special questions, ordered a verdict for the plaintiff against both defendants. The defendants alleged exceptions.
S. Fishman, for the defendants. No argument nor brief for the plaintiff.
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: 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.) Section 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, Section 1, Third, and so would be a material alteration. Homer v. Wallis, 11 Mass. 309 , 312, 313. Smith v. Dunham, 8 Pick. 246, 249. G. L. (Ter. Ed.) c. 107, Section 148. Brannan, Negotiable Instruments Law (6th ed.) Section 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. Mill Dam Foundery v. Hovey, 21 Pick. 417, 428. District of Columbia v. Camden Iron Works, 181 U.
Reeves v Eldridg, 20 Ill. 383, 384. Muckleroy v. Bethany, 23 Texas, 163, 164. Mapes, Ryan & Co. v. Newman, 2 Ark. 469. Am. Law Inst. Restatement: Contracts, Section 98 (2). This being so, the addition of the name of a witness thereto would no 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 action accrues, under the provisions of G. L. (Ter. Ed.) c. 260, Section 1, First. Clarke v. Pierce, 215 Mass. 552 , 554. It follows that whether the signature of the witness Kenney was upon the note at the time of...
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