Short v. Farmer

• Decision Date: 24 May 1927
• Citation: 260 Mass. 102,156 N.E. 735
• Parties: SHORT v. FARMER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

260 Mass. 102

156 N.E. 735

SHORT

v.FARMER.

Supreme Judicial Court of Massachusetts, Suffolk.

May 24, 1927.

Appeal from Supreme Judicial Court.

Action by William H. Short against Walter B. Farmer. From an order of the appellate division, dismissing the report after rulings for plaintiff, defendant appeals. Affirmed.W. M. Blatt, of Boston, for appellant.

C. E. Lawrence, of Boston, for appellee.

BRALEY, J.

[1][2] This is an action of contract to recover on a promissory note made by one George E. Whittier, and payable to the order of Wales B. Farmer under whose indorsement the plaintiff derives title. We assume in the absence of any question to the contrary raised by counsel, the ‘Wales B. Farmer’ is the same person as Walter B. Farmer, the defendant. The note is dated March 15, 1923, and matured July 27, 1923, and the defendant having pleaded hi discharge in bankruptcy in bar of the action, testified without objection, ‘that he was discharged in bankruptcy on August 21, 1925, in the District Court of the United States for the District of Massachusetts from all claims that were provable against his estate and which existed on the eleventh day of August, 1924,’ and a certified copy of the discharge was admitted in evidence. But no testimony was introduced ‘of the nature of the schedules, * * * nor of any notice of the bankruptcy proceedings received by the plaintiff during the pendency of said proceedings.’ The evidence was closed, and the defendant seasonably filed ten requests for rulings all of which except the third, fourth and fifth are waived. The trial judge however gave the third and fourth requests, that if the plaintiff claimed that the discharge was not a bar the burden was on the plaintiff to prove that the debt or claim was not properly scheduled, and that proof of such omission should be made by the production of the schedules. These requests accurately stated the law. U. S. Bankruptcy Act 1898, c. 3, §§ 14, 17 (U. S. Comp. St. §§ 9598, 9601); Smith v. Hill, 232 Mass. 188, 122 N. E. 310, 2 A. L. R. 1667, affirmed in Hill v. Smith, 260 U. S. 592, 43 S. Ct. 219, 67 L. Ed. 419. The fifth request, that proof of such omission should be made ‘either by the production of such schedules, or if they are not obtainable by certified copies,’ does not appear to have been specifically granted or denied. The defendant, however, suffered no harm, as shown by the subsequent proceedings.

[3][4][5][6] The case having been taken under advisement, the judge, several days thereafter, called a conference of counsel, and upon discussion announced that he would allow the plaintiff to introduce certified copies of the bankruptcy schedules. The defendant objected to the admission of additional evidence and his objection was noted. If the judge seems to have acted on his own initiative, yet it was within his discretionary power after hearing the parties to reopen the case for the admission of further...