Neal v. Wilson
| Decision Date | 28 January 1913 |
| Parties | NEAL v. WILSON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Clarence
F. Eldredge, of Boston, for plaintiff.
F Galloupe Woodbury, of Boston, for defendant.
This was an action by the receiver of the American National Bank against the drawer of a check which on presentment had been dishonored by the drawee. On the day on which the check was drawn the defendant went to the bank with one Craig, who admittedly was a clerk of Pearson. The defendant testified that the cashier of the bank told him (the defendant) that Mr. Pearson's account with the bank was overdrawn to the amount of $250; that Mr. Pearson was in New Hampshire and 'it was along about half-past 1 or quarter of 2'; and that 'he had spoken to Mr. Craig about having me put up a check of $250 to close the overdraft, and he said if I would do this, that he would hold me harmless and return the check to me in a day or two, as soon as Pearson arrived in town'; that he [the defendant] thereupon drew the check here sued on and handed it to the cashier of the bank. On cross-examination the defendant testified that he knew that the check was to be deposited to the credit of Pearson's account with the bank to make the account whole. Although it does not affirmatively appear in the bill of exceptions, it was stated at the argument that the jury were instructed that if the cashier did agree to hold the defendant harmless, as he testified, it was a defense. As to this defense see Davis v. Randall, 115 Mass. 547, 15 Am. Rep. 146. The jury found for the plaintiff. Before the case was submitted to the jury the presiding judge, at the plaintiff's request, ruled that 'there is no evidence in this case to warrant a verdict for the defendant, on the ground that the bank of which the plaintiff is receiver was the accommodated party.' An exception taken to this ruling is the only question presented in this case.
Where a defendant for the accommodation of a debtor and without consideration gives his note or check to a creditor of the debtor in payment of or as security for the debt due from the debtor to the creditor, he is liable to the creditor on the note or check. That is the rule of the negotiable instruments act (R. L. c. 73, § 46), which governs the case.
The negotiable instruments act in this regard is a codification of the common law. The creditor who has accepted it can recover on the accommodation note or check. (Pacific Bank v. Mitchell, 9 Metc. 297; Thompson v Shepherd, 12 Metc. 311, 46 Am. Dec. 676; Lowell v Bickford, 201 Mass. 543, 88 N.E. 1), and the fact that the creditor knew that the note or check was given for the accommodation of the debtor is not a defense (Tucker v Jenckes, 5 Allen, 330; Indian...
To continue reading
Request your trial