National Granite Bank v. Whicher
| Decision Date | 19 June 1901 |
| Citation | 60 N.E. 927,179 Mass. 390 |
| Parties | NATIONAL GRANITE BANK OF QUINCY v. WHICHER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
R. M. Morse, W. H. Leonard, and C. H. Hanson, for plaintiff.
Stephen H. Tyng and Jas. P. Prince, for defendant.
This is an action of contract to recover the sum of $15,000. The declaration contains counts upon three notes of $5,000 each and also counts for money lent and money had and received. The case has been twice before this court. The first time it was held that the notes were void because made payable by defendant's intestate to the order of her husband and the defendant's exceptions were sustained. 173 Mass 517, 53 N.E. 1004. At the second trial, upon an offer to show that the money was lent to the defendant's intestate, the court ruled that the plaintiff could not recover upon the common counts for money lent or money had and received, and the plaintiff's exceptions were sustained. Bank v. Tyndale, 176 Mass. 547, 57 N.E. 1022, 51 L. R. A. 447. The case has now been tried a third time, the plaintiff relying solely upon the count for money lent. There was a verdict for the plaintiff, and the case is here upon defendant's exceptions to the admission and exclusion of certain evidence, to the refusal of the presiding judge to give certain rulings, and to certain rulings or instructions that were given.
We take up the exceptions in the order in which the defendant has argued them on his brief. The first relates to the record of a suit which was brought by the plaintiff against Thomas A Whicher, one of the indorsers of the notes, in March, 1898, and which was discontinued in October, 1900. The second relates to an agreement made in November, 1898, between the plaintiff and Louis E. Whicher, another indorser, in which the plaintiff agreed not to sue him upon the notes, though 'reserving * * * all rights against * * * other parties on said notes,' in consideration of Whicher's agreement to pay on or before January 1, 1894, any amount remaining unpaid on the notes, not exceeding $3,750. These were offered by the defendant, and admitted by the court de bene. The exceptions do not state for what purpose they were offered. At the close of the evidence the court excluded them, 'and ruled that neither the bringing of said action nor the making of said agreement was such an election to treat the notes in suit as valid as would prevent the plaintiff from maintaining this action.' The defendant excepted to the exclusion of the record and agreement, and to this ruling. There is nothing in the exceptions to show that either at the time of the ruling, or at any other time in the course of the trial, the defendant claimed that the record and agreement were admissible for any other purpose than to show an election on the part of the plaintiff to treat the notes as valid. The court evidently understood that that was the purpose for which they were offered, and ruled accordingly. If the defendant relied on any other ground of admissibility, he should have then called the attention of the court to it. Not having done so, he is confined to their competency on the question of election. We think that the ruling of the court was right. The present action was brought nearly two years before the suit against Thomas A. Whicher was instituted, and was pending when the writ was sued out in that case. The declaration contained counts on the notes, and also counts for money lent and money had and received. At the time, therefore, when the plaintiff brought its action against Thomas A. Whicher as indorser, it was pursuing in this action its remedies against the defendant as maker of the notes, and on the common counts for money had and received, and for money lent; and it has continued to pursue, and is now pursuing, the remedies to which it was and is entitled in this action. It is difficult, therefore, to perceive how, by bringing the action against ...
To continue reading
Request your trial