Salem Trust Co. v. Deery

• Decision Date: 11 February 1935
• Citation: 194 N.E. 307,289 Mass. 431
• Parties: SALEM TRUST CO. v. DEERY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

289 Mass. 431

194 N.E. 307

SALEM TRUST CO. v. DEERY.

Supreme Judicial Court of Massachusetts, Essex.

February 11, 1935

Exceptions from Superior Court, Essex County; T. J. Hammond Judge.

Action by Salem Trust Company against Elizabeth A. Deery. The jury returned a verdict for defendant, but, under leave reserved before it was recorded, judge ordered entered a verdict for the plaintiff, and defendant brings exceptions.

Judgment for defendant.

N. Leonard and V. V. R. Booth, both of Boston, for plaintiff.

S. H Donnell, of Peabody, and J. E. Farley, of Salem, for defendant.

CROSBY, Justice.

This is an action of contract to recover the amount of a promissory note brought by a Massachusetts trust company which has been in the possession of the commissioner of banks since December 15, 1931. The note, dated February 11, 1931, in the sum of $30,000, was signed by the defendant and was payable to the plaintiff or its order. It was admitted by the defendant that she signed the note, and that it was given in renewal of a note for the same amount signed by her on February 11, 1930. The amount due on the note at the date of trial, September 19, 1933, plus interest was $17,320.72. The case was tried before a judge of the superior court sitting with a jury. The plaintiff on the defendant's opening moved for a directed verdict, and again at the conclusion of the evidence; the motions were denied subject to the plaintiff's exceptions. The jury returned a verdict for the defendant, but under leave reserved before it was recorded the judge ordered entered a verdict for the plaintiff in the sum of $17,320, the full amount. The case is before this court on the defendant's exceptions.

Although the defendant admitted that she signed the original as well as the renewal note on which this action is brought, she relied as a defense on want of consideration, in that she signed solely for the benefit of the plaintiff. On this issue the ultimate burden of proof was on the plaintiff, if there was any evidence rebutting the prima facie presumption established by G. L. c. 107, § 47. Lombard v. Bryne, 194 Mass. 236, 238, 80 N.E. 489; Wolff v. Perkins, 254 Mass. 10, 13, 149 N.E. 691. It has been said by this court that a verdict can rarely be directed in favor of a party having the burden of proof where the evidence consists of oral testimony. McDonough v. Metropolitan Life Ins. Co., 228 Mass. 450, 452, 117 N.E. 836; Thomes v. Meyer Store, Inc., 268 Mass. 587, 589, 168 N.E. 178. Moreover, regardless of which party has the burden of proof, it is held in this commonwealth that a verdict will not be directed for a party unless the evidence when construed most favorably to the opposite party would not warrant a contrary verdict, or unless evidence by which such opposite party is bound would make impossible a verdict in his favor. Durant v. Holbrook, Cabot & Rollins Corp., 207 Mass. 76, 79, 92 N.E. 1002; La Fond v. Boston & Maine Railroad, 208 Mass. 451, 456, 94 N.E. 693; Patton v. De Viney, 259 Mass. 100, 102, 156 N.E. 33; Weiner v. D. A. Schulte, Inc., 275 Mass. 379, 385, 176 N.E. 114; Bellenger v. Monahan, 282 Mass. 523, 528,158 N.E. 346; Curtis v. Comerford, 283 Mass. 589, 591, 186 N.E. 585.‘ The practice in this commonwealth and generally requires a submission to the jury if there is evidence proper for their consideration, even though the preponderance may appear so great to the trial court as to require him (if requested) to set aside one or several verdicts rendered against such preponderance.’ Niland v. Boston Elevated Railway Co., 208 Mass. 476, 478, 94 N.E. 703, 704, and cases cited. Warner v. Fuller, 245 Mass. 520, 529, 139 N.E. 811; Hicks v. H. B. Church Truck Service Co., 259 Mass. 272, 276, 156 N.E. 254. The question therefore to be determined in the case at bar is whether there was any evidence upon which the jury could have found for the defendant. If there was, a verdict could not properly be directed even though the trial judge might set it aside.

The defendant testified that on or about February 11, 1930, she went to the Salem Trust Company to see vice president Carr, at the request of her husband, John A. Deery, who was president of the company. There, at the request of Carr and upon his assurance that her signature was needed for the accommodation of the bank and would involve no liability on her part, she signed a note for $30,000 payable to the plaintiff. Her husband testified that he had asked the defendant to sign the note, but that the execution of it was handled by Carr; the husband was present. Carr testified that he had no recollection of a conversation with the defendant incidental to signing the note. The defendant later signed the renewal note on which the present action is brought. She testified that she did not remember any conversation in connection with the signing of this renewal note. It was stipulated by counsel and read to the jury that on the date of the signing of the original note two checks of the savings department of the Salem Trust Company were issued, payable to the order of the defendant, in the sums of $20,000 and $10,000 respectively; that no personal indorsement of the defendant appears on the back of these checks; but ‘ that the guarantee stamp of the bank was used.’ The checks issued by the savings department were deposited with the commercial department, and the proceeds from the checks were used by the commercial department to pay $30,000 of a $35,000 draft which was presented to the plaintiff by the Naumkeag Trust Company for collection with a note of John Deery attached. The defendant further testified that she never talked with anyone representing Hornblower & Weeks about her husband's transactions with that concern out of which arose the indebtedness which was paid by the plaintiff from the proceeds of the defendant's note in the manner above described.

The evidence shows that the note of the defendant was recorded in the cash book and on the daily statement of condition of the plaintiff. It was agreed by counsel for the defendant that the note was listed as an asset of the plaintiff in the amount of $30,000, but there was evidence that the defendant had no knowledge of this fact. In view of the entire evidence the entry of a verdict for the plaintiff under the leave reserved was erroneous. The jury could have found upon the evidence that the defendant signed the original note without having received any consideration therefor. The circumstance that the plaintiff extended...