Patton v. Viney

• Decision Date: 05 April 1927
• Citation: 156 N.E. 33,259 Mass. 100
• Parties: PATTON v. DE VINEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

259 Mass. 100

156 N.E. 33

PATTON

v.DE VINEY.

Supreme Judicial Court of Massachusetts, Suffolk.

April 5, 1927.

Exceptions from Superior Court, Suffolk County; Joseph Walsh, Judge.

Action of contract by Herbert W. Patton against Matthew J. De Viney to recover on a note. Defendant's request for a directed verdict was denied, and he excepts. Exceeptions overruled.W. R. Bigelow, of Boston, for plaintiff.

J. J. Curran, of Boston, for defendant.

PIERCE, J.

This is an action of contract brought on a promissory note dated August 19, 1921, alleged to have been signed by the defendant, payable to the order of the Anglo-American Brewery, Inc., and by it indorsed to the plaintiff.

At the trial it was admitted, or evidenced by undisputed testimony, that the defendant executed the note in suit on the day of its date and delivered it to one Marshall to be used by him in promoting or carrying on the Anglo-American Brewery company; that when the note was executed the company was in process of organization but was not chartered until September 3, 1921; that some time after September 3, 1921, the note was indorsed, ‘Pay to the order of H. W. Patton. The Anglo-American Brewery, Inc. L. E. Chester, Treas. H. W. Patton.’ It further appeared that the treasurer, Louis E. Chester, had authority under section 1, article V, of the by-laws to indorse on behalf of the company checks, notes and other obligations; that after he had indorsed the note he handed it to Marshall and ‘then he and Mr. Marshall walked immediately into Mr. Patton's office and Mr. Marshall gave it to Mr. Patton in his presence.’ No question is raised but that Patton thereafter advanced money to Marshall which was used by Marshall in promoting the corporation between the dates of September 9 and November 22, 1921.

[1][2] The payee was a fictitious person, and the instrument was negotiable without indorsement if such nonexistence was known to the maker of the note. G. L. c. 107, § 31, (3). The evidence, to the effect that the defendant about the time of the date of the note in suit had signed other notes for the purpose of promoting the Anglo-American Brewery Company, reasonably might warrant the jury in the pending action in inferring that the defendant knew when he signed the note in suit that the Anglo-American Brewery, Inc., payee in the note was a fictitious person.

[3] The request to rule that ‘upon all the evidence, the plaintiff is not entitled to recover’ was denied rightly. To pass upon such a request other than to deny it would be to violate Common-Law Rule 44 of the Superior Court (1923) which requires that--

‘The question whether the court should order a verdict...