Prudential Trust Co. v. Coghlin

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: CROSBY
• Citation: 144 N.E. 283,249 Mass. 184
• Decision Date: 22 May 1924
• Parties: PRUDENTIAL TRUST CO. v. COGHLIN.

249 Mass. 184
144 N.E. 283

PRUDENTIAL TRUST CO.
v.
COGHLIN. ^*

Supreme Judicial Court of Massachusetts, Suffolk.

May 22, 1924.

Exceptions from Superior Court, Suffolk County; R. F. Raymond, Judge.

Action of contract by the Prudential Trust Company against Edward F. Coghlin to recover balance due on promissory note. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

[249 Mass. 187]

[144 N.E. 284]

G. Alpert and J. E. Hannigan, both of Boston, for plaintiff.

S. C. Rand, of Boston, for defendant.

CROSBY, J.

This is an action to recover the balance of $2,000 and interest, alleged to be due on a promissory note. The maker of the note was Coghlin-Wilson Electric Company and it was signed on behalf of the company by the treasurer (the defendant), and indorsed by him, one McLaughlin, and one Wilson. It was dated December 1, 1916, and payable to the plaintiff at its place of business six months after date.

The plaintiff called as a witness one Frazer, a notary public, who testified that he protested the note and notified the three indorsers by depositing notices in a mail box on Summer street in Boston; that at the time of protest he attached a certificate of protest to the note, and entered in [249 Mass. 188]a book a record of the protest; that the book was kept by him in the ordinary course of business; and that all the entries were in his handwriting. He further testified that in protesting the note he followed the usual procedure and that except for the record he had no recollection of the transaction.

At the close of the evidence the defendant moved that a verdict be directed in his favor; the motion was denied and the jury returned a verdict for the plaintiff. The case is before us on the defendant's exceptions to the refusal of the court to direct a verdict, to the admission and exclusion of evidence, to the refusal of the trial judge to give certain requests for rulings, and to certain parts of the charge to the jury.

[1][2][3][4] The record book kept by Frazer as a notary public was properly admitted in evidence to show that the note had been duly protested. Notaries public hold office under our Constitution (article 4 of amendments to the Constitution of Massachusetts), and entries made by them in a book kept in the regular course of business are deemed original acts, and are admissible to the extent that the facts stated are within the scope of their duty as defined by custom or statute. While Frazer testified that he had no recollection of the transaction independent of the entry on his book, he stated that from his usual practice in protesting notes, keeping his book, and making entries therein, he believed that the notices had been sent. This testimony

[144 N.E. 285]

was admissible and if believed was sufficient to prove the protest of the note, which included the sending of notices to the indorsers. Such books have long been held admissible in evidence. The entry in the book kept by the witness was admissible to refresh his memory and the book itself was properly admitted. Shove v. Wiley, 18 Pick. 558;Adams v. Coulliard, 102 Mass. 167, 173;Costello v. Crowell, 133 Mass. 352. The deposit of the notice in the mail box in the street was the same in legal effect as if it had been deposited in a box at the post office. Johnson v. Brown, 154 Mass. 105, 27 N. E. 994.

[5] The notary testified that he attached a notarial certificate to the note, that this certificate had been lost, and after [249 Mass. 189]search could not be found. Under these circumstances a copy of the original was properly admitted in evidence.

G. L. c. 107, § 13, provides that:

‘The protest of a bill of exchange, promissory note or order for the...