Reed v. Mattapan Deposit & Trust Co.

• Decision Date: 02 April 1908
• Parties: REED v. MATTAPAN DEPOSIT & TRUST CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

198 Mass. 306

84 N.E. 469

REED v. MATTAPAN DEPOSIT & TRUST CO.

Supreme Judicial Court of Massachusetts, Suffolk.

April 2, 1908

Plaintiff's refused requests, referred to, were as follows:

'If Thomas Keyes really signed the check in question, but without his express authority some one took it and the bank paid it to one not specially authorized by him, then the fact that there is no payee designated in the check makes the payment of the check no defense to this action.'

'If Thomas Keyes by reason of infirmity of age and disease had mental faculties so impaired in strength that he was not capable of understanding fully what he was doing, and in that condition signed this check, and some one else went to the bank and drew the money, the plaintiff is entitled to a verdict, regardless of the question of genuineness or payment.'

COUNSEL

Elisha Greenhood, for plaintiff.

Hutchins & Wheeler and Chas. F. Choate, Jr., for defendant.

OPINION

BRALEY J.

The questions raised by the exceptions relate either to matters of evidence, or to the refusal to instruct the jury as the plaintiff requested. It was the plaintiff's contention upon which in opening he rested his right to recover, that the deposit standing in the name of the intestate, had been paid over in his lifetime on a check to which the signature had been forged, and consequently the defendant must repay the amount. Mackintosh v. Eliot Nat. Bank, 123 Mass 393. In support of the claim that the forgery had been accomplished, the check presented, and payment procured through a conspiracy in which the intestate's wife, who received the proceeds participated, she was called as a witness by him. If later in the trial it appeared from the evidence of the defendant's witnesses, that she received the money directly from her husband, who previously had cashed the check, it was entirely competent for the plaintiff to show if he could that she had actually obtained it by unlawful means. It appeared from her testimony, that after having been received the money had been deposited in another trust company, and then withdrawn some two months later, and used for the payment of rent, and household expenses. The further question was then put, as to where she had kept the money while it was being spent. No doubt it is well settled in the law of evidence, as the plaintiff claims, that presumptions, or inferences of fact may be drawn from the proof of other facts. But if the charge was a conspiracy in which the witness was said to have participated, yet upon the plaintiff's theory the illegal purpose having been accomplished when the defendant paid over the money, it is manifest that her conduct as to its custody some two months after, became immaterial, and the question even under the offer of proof was rightly excluded. Com. v. Meserve, 154 Mass. 64, 70, 27 N.E. 997. The refusal to permit the examination of the defendant's actuary, by putting material leading questions, if placed upon the common law ground of hostility of the witness was discretionary, if based upon Rev. Laws, c. 175, § 22, which confers upon either party to a suit the right to call and cross-examine his adversary, the answer is, that the witness was not a party, although an officer of the defendant company. Emerson v. Wark, 185 Mass. 427, 429, 70 N.E. 482. By Rev. Laws, c. 173, § 61, where a corporation is the adverse party ample provision is made for the examination by written interrogatories of its officers and servants, as if they were principals, and until further legislation this method must be treated as exclusive. The plaintiff, moreover, not only previously had interrogated the witness under the statute, but later upon being called by the detendant, the plaintiff was then afforded an opportunity for extended cross-examination. Upon the question of the mental capacity of the decedent, and the genuineness of his signature, the evidence was conflicting. Both parties introduced certain checks the signatures to which were admitted to be genuine, and these were used as stand of comparison by the respective handwriting experts. The order on the savings bank having been admitted as a standard, subsequently an expert called by the defendant, but who had never seen the decedent write, was permitted, subject to the exception of the plaintiff, to give his opinion based upon a comparison with the standards furnished by the checks, that the signature to the order was genuine. The argument, however, that this evidence was incompetent because an attempt to establish a standard by a witness without testimonial knowlege derived from seeing the decedent write, is inapplicable. If he signed the order the day before he signed the check, this fact furnished some evidence of his ability to transact business, and that the check was issued by him. This testimony, therefore, was admissible, not as proof of a standard which...