Mumford v. Coghlin

• Decision Date: 21 May 1924
• Citation: 249 Mass. 184
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: GEORGE S. MUMFORD & others, trustees, v. EDWARD F. COGHLIN.

249 Mass. 184

GEORGE S. MUMFORD & others, trustees, v. EDWARD F. COGHLIN.

Supreme Judicial Court of Massachusetts, Suffolk.

May 21, 1924

March 25, 1924.

Present: RUGG, C.

J., BRALEY, DE COURCY, CROSBY, & WAIT, JJ.

Bills and Notes Protest; Indorser: notice, discharge by extension of time to maker; Presentment; Alteration. Notary Public. Letter. Evidence, Record book of notary public, Of notice by mailing Best evidence, Copy of lost certificate of protest, Res inter alios. Practice, Civil, Argument by counsel, Charge. A notary public is a public officer under art. 4 of the Amendments to the

Constitution of Massachusetts, and, therefore, at the trial of an action against an indorser upon a promissory note, it is proper to admit as evidence tending to show the proper protesting of the note the record book of the notary as to which he has testified that he kept it in the ordinary course of his business as a notary and that all entries therein were in his own handwriting.

Testimony of the notary public in the action above described, that he believed that notice of protest was sent to the defendant, was admissible where he also had testified that his belief was founded upon his usual practice in protesting notes, in keeping his book and making entries therein, although he also stated that he had no recollection of the transaction independent of the entry in his book.

The deposit in a United States mail box of a notice in writing of protest of a promissory note is similar in legal effect to a depositing of the notice in a box at the post office.

At the trial of the action above described, the notary public testified that he had attached a notarial certificate to the note, that this certificate had been lost, and that after search it could not be found.

The judge admitted in evidence a copy of the original notice. The defendant contended that, since G.L.c. 107, Section 13, referred only to the original document, it was improper to admit in evidence a copy for the same purpose. Held, that the admission of such secondary evidence was proper.

At the trial of the action above described, the notary public had testified that he protested the note and notified three indorsers of the protest.

Testimony by one of the indorsers, who was not a party to the suit, that he had not received notice of dishonor was excluded. Held, that the exclusion was proper, it not being material whether notice was given to such indorser not a party to the suit and the defendant not having objected to the introduction in evidence of that part of the notary public's record which related to the other indorsers.

At the trial of the action above described, for the purpose of showing that the maker had been granted an extension of time for payment without the consent of the defendant, an indorser, so that the indorser was discharged from liability, the defendant offered to prove that the maker's president expressed to the plaintiff's president a willingness to pay the note and the plaintiff's president told him to make payments to another creditor of the maker. It did not appear that payments were made to the other creditor or that the maker made a tender to the plaintiff of the amount due on the note or did anything that he was not already bound to do. Held that no valid or enforceable agreement for an extension of time was shown, and that the defendant was not discharged.

The testimony of a notary public in the action above described, that he had protested the note, and his record were evidence of due presentment, and it was proper for the trial judge to refuse to rule that there was no evidence from which the jury might find that the note in question was duly presented for payment.

It appeared that the note above described originally had at its upper left hand corner the figures $5,000. The words in the body of the note showing the amount which the maker promised to pay were "Five Thousand

Dollars." The note when produced at the trial showed that a line had been drawn through the figures $5,000 and the figures $2,000 written directly above. Indorsements on the back of the note showed three payments of $1,000 each. Held, that there was no evidence of a material alteration of the note which would result in its being discharged.

The note in the action above described did not provide for interest. On its face were stamped the words "Rate 6%," and opposite thereto was stamped

"June 1." The due date of the note was June 1. Held, that this amounted only to a statement of the implication of law that, if the note was not paid at maturity, interest would be payable at six per cent after that date, and was not a material alteration discharging the note.

A certain comment by counsel for the plaintiff in his closing argument, upon the absence of material witnesses whom, he argued, the defendant should have called to testify, and an instruction by the judge in his charge relating thereto, were held not to have been erroneous.

CONTRACT, originally brought by Prudential Trust Company against one of the indorsers on a negotiable promissory note described in the opinion. Writ dated December 14, 1920.

The right was granted on November 5, 1923, to substitute as plaintiffs George S. Mumford, John E. Hannigan and Henry V. Cunningham as trustees. In the Superior Court, the action was tried before Raymond, J. Material evidence is described in the opinion. At the close of the evidence, the defendant moved that a verdict be ordered in his favor. The motion was denied. The defendant then asked for the following rulings:

"1. Upon all the evidence the plaintiff is not entitled to recover."

"5. There is no evidence from which the jury may find that the note in question was duly presented for payment."

"8. The note in question has been discharged by a material alteration. "9. The note in question has been discharged by a material alteration in the amount."

The rulings were refused. In his closing argument "the plaintiff's counsel commented on the fact that Charles M. Thayer, John E White, Joseph E. Green and Daniel B. Cunningham and other persons, testified to by the witness McLaughlin as having been present at the conference at which it was claimed the extension of the note was given, had not been summoned in as witnesses by the defendant." The defendant objected to such argument, but the trial judge permitted the counsel to proceed subject to an exception by the defendant, and in his charge instructed the jury as follows: "It has been claimed and very properly claimed that anybody, those men or any other men in the Commonwealth were open to subpoena equally by the plaintiff or the defendant that is all very true and the bearing, the only bearing of such an argument as that would be here who needed that testimony [sic]; that is who had the burden of proof as to that meeting up in Worcester; if the proof of what occurred at that meeting was necessary for the plaintiff then you might say that the plaintiff ought to call any man who was necessary to prove what did take place but if the facts that occurred, up there at the meeting in Worcester was needed by the defendant to establish his defence then you might say that he was the man who ought to subpoena and bring down here those men who knew the facts, or what took place at that meeting; so that it seems to me that it is simply a question of the burden of proof. I personally never felt as though the heat engendered by discussion of whether certain people have been called or haven't been called amounted to very much with a jury, but it serves sometimes to get some unwise judge's decision to be set aside so I expect it is serviceable, but I don't think after eighteen years on the bench I have ever seen a case where I thought it cut any figure at all in bringing a jury to a conclusion; but it is for you to say; you heard the argument. I let it go in, I think it properly might go in and whether or not the defendant needed to show what took place up at that meeting and whether or not these men were needed to show that fact you may have in mind on the question of whether or not they ought to have called them. You ought also to bear another thing in mind: sometimes there are a lot of people who can testify about facts in issue, but, if they brought in in all cases all the people who knew anything about a fact to testify, why they would flood this court room and we wouldn't have time to get through any cases at all! [It] depends generally upon the good judgment of experienced counsel as to how many men they want to prove their case, people who do know the facts, and the skill of counsel is generally shown in the matter of their calling all the witnesses who are needed or who can testify to the real fact in issue and getting through sometime or other. That...