Smith v. Lentini

• Decision Date: 05 April 1966
• Docket Number: No. 1928,1928
• Citation: 220 A.2d 291,125 Vt. 526
• Court: Vermont Supreme Court
• Parties: Agnes Ellenwood SMITH v. Vincent J. LENTINI, Extr., John Molla Estate.

Page 291

220 A.2d 291

125 Vt. 526

Agnes Ellenwood SMITH v. Vincent J. LENTINI, Extr., John Molla Estate.

No. 1928.

Supreme Court of Vermont.

April 5, 1966.

Motion for Reargument Denied June 7, 1966.

Davis, Martin & Free, Barre, for plaintiff.

Monti & Eldredge, Montpelier, for defendant.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

KEYSER, Justice.

The defendant appealed to the Washington County Court from the action of the commissioners of the Estate of John Molla in allowing a claim presented against the estate by the plaintiff. This claim is in the form of a written instrument which plaintiff contends, and the defendant denies, constitutes a promissory note. Hearing below was by the court. The court found the instrument was a promissory note delivered to the plaintiff by the deceased and properly allowed as a claim against the estate of John Molla by the commissioners of the estate. Judgment was for the plaintiff and defendant's appeal to this court followed.

Viewing the evidence in the light most favorable to the prevailing party, as we must, the following facts appear.

John Molla was an attorney and practiced law in the City of Barre, Vermont for many years. The plaintiff had been in his employ for nearly twenty-five years.

On March 22, 1956, Mr. Molla told plaintiff he was going to make out a note for her. The plaintiff, at Mr. Molla's request, typed out the instrument involved here, Plaintiff's Exhibit No. 1, also referred to by the court as Claimant's Exhibit A. This was done in his office. The plaintiff told Mr. Molla she wanted 'a witness to that note.' They then drove to the Howard Johnson Restaurant on the road to Montpelier to have Fernando Saldi sign as a witness. Mr. Molla had been attorney for Mr. Saldi for some twenty years. They were also business associates for about ten years in the operation of the Vermonter Motel located to the rear of the above restaurant owned and operated by Saldi. Mr. Molla and Mr. Saldi each signed the instrument in the latter's office in the restaurant. The plaintiff remained outside in the car near the door of the restaurant. Later Mr. Molla returned to the car accompanied by Mr. Saldi.

The instrument which had been signed in the office was delivered to the plaintiff at that time in the presence of Mr. Saldi. The plaintiff and Mr. Molla then left together in the car. Mrs. Smith, the plaintiff had the signed instrument in her possession from the time Mr. Molla delivered it to her until she presented it to the commissioners of the estate.

The defendant excepted to certain findings; to the failure of the court to find as requested; to the admission of Plaintiff's Exhibit No. 1, the instrument in question; and to the judgment. The defendant argues these exceptions separately. However, in broad outline, the fundamental issue raised by these exceptions is whether or not this instrument contains all the essential requirements to establish it as a promissory note.

This court must affirm the findings if there is any credible evidence to support them, and must construe those findings so as to support the judgment, if possible. Cross-Abbott Co. v. Howard's, Inc., 124 Vt. 439, 445, 207 A.2d 134. The evidence considered as a whole must be read in support of the findings, if reasonably possible. The weight of the evidence, the credibility of the witnesses and the persuasive effect of the testimony lies solely with the trier of facts. Little v. Little, 124 Vt. 178, 182, 200 A.2d 276.

The instrument in question, Plaintiff's Exhibit No. 1, is in the following terms:

'$30,000.00

Barre, Vermont, March 22, 1956

On demand, after my decease I direct my Executor to pay to the order of Agnes Ellenwood Smith, my secretary, the sum of,

-THIRTY THOUSAND DOLLARS- out of my estate.

In presence of:

Fernando Saldi

John Molla'

Findings No. 5 and No. 6 excepted to by the defendant read:

'5) In consideration of the provisions of 9 V.S.A. Chapter 21, Sub Chapter 1, commonly known as the 'Negotiable Instruments Law,' and the fact that no affirmative defenses were filed by the Estate, the Court finds Claimant's Exhibit A to be a negotiable instrument and expressly finds Claimant's Exhibit A to be supported by consideration upon the authority of 9 V.S.A. 351.

6) Counsel for the Claimant may prepare an order providing that the instrument, Claimant's Exhibit A, is found to be a negotiable promissory note and as such is not a testamentary instrument violative of the Statute of Wills. Such orders should further provide that the allowance of this claim by the Commissioners of the Estate is affirmed, and this cause may be certified to the Probate Court for the District of Washington.'

The Negotiable Instrument Act, Chapter 21 of Title 9, V.S.A., § 301, prescribes the form of a negotiable instrument:

'An instrument to be negotiable must conform to the following requirements:

(1) it must be in writing and signed by the maker or drawer;

(2) must contain an unconditional promise or order to pay a sum certain in money;

(3) must be payable on demand or at a fixed or determinable future time;

(4) must be payable to order or to bearer; and

(5) where the instrument is addressed to a drawee, he must be named or otherwise indicated therein with reasonable certainty.'

The defendant contends that there was no consideration for the instrument; also that the plaintiff did not introduce any evidence to show consideration. This question was raised by defendant's request to find that 'there was no consideration passing between the plaintiff and John Molla at anytime for the execution of said instrument.'

There were no pleadings filed by either party-the plaintiff as to the nature of her claim, or the defendant as to any affirmative defenses required by 12 V.S.A. § 1024. Plaintiff claims defendant did not plead or prove the affirmative defense of failure of consideration. Defendant counters this argument by saying he had no duty in this respect until plaintiff 'produced or pleaded an instrument that constituted a promissory note.'

In Robinson v. Executors of Robinson, 32 Vt. 738, 739, 740, the court said:

'In Hodges, Executor v. Thacher et al., 23 Vt. 455, the court held that the probate court have a discretion as to accepting or rejecting a report of commissioners that is returned to the court, as well for matters that do not appear as for those apparent on the face of the report; and may re-commit the report to the commissioners if necessary, and that the decision of the commissioners does not become an adjudication in contemplation of law, until returned and accepted by the probate court. It is the decree of the probate court accepting the report and ordering it to be recorded that makes it a final decision-a judgment and record. In this view of the effect of the decree, we think the prayer for an appeal is sufficient if it is expressed as praying for an appeal either from the decree of the court accepting the report, or from the decision and report of the commissioners.'

The appeal from the decision and report of the commissioners allowed by 12 V.S.A. § 2556 is in effect an appeal from the order and decree of the probate court ordering that such report be allowed and recorded. This statute requires that the notice of appeal be filed with the register of the probate court within thirty days after the return of the commissioner's report. No. 261, § 60, Acts of 1959.

12 V.S.A. § 2384 governs appeals to county court from probate court. This statute requires that the appellant shall file in the county court, within thirty days after his notice of appeal is filed, a statement of those questions which he desires to have determined. Issue may then be joined under the direction of the county court.

In these proceedings, since the appellant in county court was the executor of John Molla Estate, it was incumbent upon him to file a statement of those questions of law or fact which he sought to have determined on appeal. This he failed to do.

However, at the time of hearing, preliminary to the introduction of testimony, plaintiff's attorney upon inquiry by the court responded that the claim had always been on a note. Defendant's attorney stated the instrument was not a note and that the dispute was to determine whether or not it was an actionable instrument. The court and defendant were thus informed as to the nature and form of plaintiff's claim. The case the proceeded to hearing de novo on the issues thus framed under the direction of the court after this understanding was reached. It is apparent from the record that counsel acquiesced in this procedure being adopted.

At the close of witness Saldi's testimony, plaintiff offered the instrument 'as a promissory note.' Under that offer, the court received it into evidence over the objections of the defendant. The defendant's objections did not go to the question, or defense, of failure of consideration but rather related to other grounds. His attorney stated he was not questioning the execution of the instrument and that it was signed by John Molla. The court then admitted the instrument under the offer made by plaintiff.

The instrument was payable 'to the order of' the plaintiff which meets the requirement for negotiability under 9 V.S.A. § 301(4).

Title 9 V.S.A. § 351 provides:

'Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration, and every person whose signature appears thereon to have become a party thereto for value.'

Whether or not pleadings were filed, as the case then stood after the negotiable instrument was received in evidence, the burden of proof then shifted to the defendant to produce evidence on the issue of a failure or lack of consideration. Section 355 of 9 V.S.A. provides that absence or failure of consideration is matter of defense as against any person not a holder in due course. Defendant's argument overlooks the foregoing provisions of the Negotiable...