Parks v. Smith
| Decision Date | 25 November 1891 |
| Parties | PARKS v. SMITH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
A.M. Copeland, for appellant.
George M. Stearns, for respondent.
Strictly speaking, the only questions open upon the report are whether the plaintiff was entitled to judgment upon the overruling of the answer in abatement, and whether the rulings asked for by the plaintiff should have been given; but, as both parties have argued questions of the admissibility of evidence, we have dealt with them.
1. Upon the question whether judgment should have been entered for the plaintiff upon the overruling of the answer in abatement the case is governed by Fisher v. Fraprie, 125 Mass 472. In that case, as in this, the answer filed contained both an answer in abatement and an answer to the merits; and as was there held, "if the answer in abatement was overruled as matter of law, the defendant had the right to answer over, if as matter of fact he might do so, at the discretion of the judge." The plaintiff's motion for judgment was therefore properly denied.
2. The plaintiff put in evidence the depositions of the widow of the payee and of his daughter. Copies of the depositions are not given, but we infer from the report that both deponents testified that they were present when, on December 16, 1887, a payment was made by the defendant, and indorsed upon the note in her presence. Among the interrogatories were these: "State in whose handwriting are the indorsements of payments on the back of said note." "Particularly examine the indorsement of December 16, 1887, and state in whose handwriting is that indorsement." Objections to these questions were noted as follows: "Objected to competency of witness to say, and as immaterial." The objections were overruled, and the answers were read. The defendant contends that the objections should have been sustained, because the deponents were not qualified to testify as to the handwriting, and because the handwriting of the indorsements was immaterial. The answers to the interrogatories are not given. Whatever they may have been, the report does not show that the deponents were not competent to testify upon the subject inquired of, or that their testimony was immaterial to the issues, and it is to be presumed that the state of the testimony authorized the presiding justice to find that the deponents were competent to testify, and that the evidence was material.
3. The defendant contended at the trial that the plaintiff was not the bearer of the note, while the plaintiff claimed that, although he had no beneficial interest in the action, it was brought by him for the benefit of the estate of the payee, who had deceased, and who, at the time of his death, was a resident of New York, in which state his will had been proved, and executors thereof appointed. Under these circumstances, the letter of one of the executors to the plaintiff's attorney, authorizing him to bring an action on the note in the plaintiff's name, was material to the issue whether the plaintiff was the bearer of the note, and was properly admitted in evidence. Beekman v. Wilson, 9 Metc. (Mass.) 434; Wheeler v. Johnson, 97 Mass. 39.
4. The same considerations justified the refusal to rule that the plaintiff was not the bearer of the note, and that an action could not be maintained upon it in his name.
5. By the third request--that evidence of the possession of the note by the maker, after the decease of the payee, raised a presumption of its payment or surrender--we understand that the court was asked to rule either that the presumption was conclusive, or that it was in fact of such weight, when considered with the evidence, as to require the court to find for the defendant. The presumption, however, is merely prima facie, (Baring v. Clark, 19 Pick. 220; McGee v. Prouty, 9 Metc Mass. 547;) and the question of its weight was one of fact, upon which the finding of the judge sitting without a jury was final.
6. The note in suit was made in New York, where all parties to it then resided, on September 1, 1884, and was payable in one year and six months from its date, with interest, to Seymour E. Smith, or bearer. It was signed by John Bernice Smith, a son of the payee, and indorsed upon the back by the defendant, who was then Sarah Greason, a single woman. In June, 1885, John Bernice Smith and Sarah Greason intermarried. The evidence was conflicting as to whether the defendant was merely an accommodation indorser; but the court found, without objection, that under the laws of New York she was not a maker of the note, and could be held only as an indorser. No demand of payment was made of the maker of the note at its maturity, and no notice was given to the defendant as indorser. Seymour E. Smith died July 25, 1889 testate, at his home in the state of New York, where his will has been proved, and his estate is in process of settlement. John Bernice Smith is one of several equal residuary legatees, but neither their number nor the amount of the residuary fund is stated. The plaintiff contended that the defendant was holden upon the note, notwithstanding the want of demand and notice, by reason of her waiver of those defenses; and relied in support of this proposition upon evidence of a partial payment, and of oral promises, and upon the contents of letters written by her to the payee. The defendant denied the making of the payment or of the oral promises, and claimed that the letters contained no promise to pay the note. She further contended that neither her payment nor her promise was effectual to revive her liability, because, if made, she was then ignorant of the fact that no demand was made upon the maker of the note at its maturity; and also that she could not be holden...
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