Parker v. Roberts

• Decision Date: 29 November 1922
• Citation: 243 Mass. 174
• Parties: GEORGE W. PARKER v. BLANCHE M. ROBERTS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

243 Mass. 174

GEORGE W. PARKER v. BLANCHE M. ROBERTS.

Supreme Judicial Court of Massachusetts, Suffolk.

November 29, 1922

October 17, 1922.

Present: RUGG, C.

J., BRALEY, PIERCE CARROLL, & JENNEY, JJ.

Bills and Notes Holder in due course, Indorsement in blank. Evidence Presumptions and burden of proof. Practice, Civil, Harmless error.

In the declaration in an action in a municipal court upon a negotiable promissory note, the plaintiff alleged that the defendant made the note, that the payee indorsed it in blank, that the plaintiff was the holder thereof and that the defendant refused to pay it. At the trial the plaintiff produced the note which had upon it the blank indorsement of the payee, a special indorsement by stamp of one bank in the State of

Illinois to another, and a cancelled indorsement by the second bank "pay to the order of any bank or banker." There was evidence that the payee transferred the note to the first bank for one whose name was not on the note and who was not a party to the action. It did not appear in what manner the plaintiff became the holder. The judge "found for the plaintiff on the deelaration." Held, that

(1) By G.L.c. 107, Section 71, the plaintiff had a right to omit tracing his title in the declaration through all indorsers subsequent to the blank indorsement by the payee;

(2) The note was transferable by delivery and in effect was payable to bearer;

(3) It was a presumption of fact that the plaintiff was a holder in due course, and, that presumption not being rebutted, the question of consideration between the maker and the payee was immaterial;

(4) An inapplicable ruling by the judge, relating to the consideration given to the maker by the payee, was harmless error.

CONTRACT upon a promissory note for $300, dated June 26, 1920, payable in eighty days to E. K. Smith or order and signed by the defendant. Writ in the Municipal Court of the City of Boston dated December 29, 1920.

The declaration alleged merely that the defendant made the note, that the payee indorsed it in blank, that the plaintiff was the holder thereof, that the defendant bad refused to pay it and that he owed its amount to the plaintiff.

Indorsements which appeared on the note are described in the opinion.

At the trial in the Municipal Court, no evidence was offered to show how the plaintiff became the holder of the note other than the testimony of the payee by deposition "that the plaintiff was the legal holder of the note at the time suit was brought." He further testified that for several months he was a member of the bar of the State of Illinois and not of that of Massachusetts, that he rendered legal services for the defendant in Boston, for which the note was given, that he indorsed the note in blank, before maturity, and that it was transferred for value, not cash, to a bank in Illinois for F. Stanford, whose name did not appear on the note.

The defendant asked for the following rulings of law: "1. On all the evidence there must be a finding for the defendant.

"2. The note in said Smith's hands is without consideration and he was not a holder in due course.

"3. The burden is on the plaintiff to show that he is a holder in due course or that some person under whom he claims is a holder in due course and the plaintiff has not maintained this burden.

"4. As far as the evidence shows the plaintiff is simply an agent for the collection for E. K. Smith and has no greater rights than E. K. Smith.

"5. The plaintiff is not a holder in due course." The plaintiff asked for the following rulings of law:

"1. If the plaintiff is a bolder of the note in question in due course, the matter of the consideration of that note is immaterial.

"2. No evidence has been presented that the plaintiff is not a holder in due course.

"3. The payee of the note, Edwin K. Smith, is legally entitled to remuneration for services as attorney, if such services are performed, notwithstanding the fact that he is not a member of the bar of Massachusetts, if he is a member of the bar of another State.

"4. The bearer of a note indorsed in blank is presumed to be a holder in due course."

The rulings asked for by the defendant were refused. Those asked for by the plaintiff were given. The judge "found for the plaintiff on the declaration," and, at the request of the defendant, reported the case to the Appellate Division, who ordered the report dismissed. The defendant appealed.

R. J. Lane, for the defendant. C. F. Choate, 3d, for the plaintiff.

BRALEY, J. The payee, to whose order the promissory note in suit was made payable, having indorsed it in blank before maturity, the plaintiff's possession of the note which he produced at the trial would be sufficient evidence of title on which to maintain the action if no further indorsements written on the instrument itself or upon a paper attached thereto appeared. G.L.c. 107, Sections 31, 54. Way v. Richardson, 3 Gray, 412. Jump v. Leon, 192 Mass. 511 . Massachusetts National Bank v. Snow, 187 Mass. 159, 162. Leavitt v. Wintman, 234 Mass. 248 . Bovarnick v. Davis, 235 Mass. 195. But the record states that the payee transferred the note "for value . . . to a bank in Illinois," and the immediate indorsement on the back of the note is, "Pay the Corn Exchange Natl Bank Chicago Ill. or order First National Bank 70-768 Milford, Ill. 70-768 G. F. Patterson, Cashier." The indorsement directly following, "Pay to the order of any bank or banker all prior indorsements guaranteed, The Corn Exchange National Bank 2-5 of Chicago, Ill.," and signed by its cashier is stamped "cancelled," across the stamp. It did not appear in...