Smith v. Miles
| Decision Date | 03 December 1936 |
| Citation | 5 N.E.2d 12,296 Mass. 126 |
| Parties | SMITH v. MILES. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions from Superior Court, Middlesex County; Cox, Judge.
Action of contract by Herbert L. Smith against Charles H. Miles. Verdict for the plaintiff in the sum of $7,370.92, and defendant brings exceptions.
Exceptions overruled.
L. E Thayer, of Boston, for plaintiff.
P. A Northrup, of Boston, for defendant.
This is an action of contract on a promissory note, given by the defendant, dated May 1, 1930, in the principal sum of $6,500 with interest at six per cent., payable in three years, and secured by a duly recorded mortgage on real estate. The defendant's answer is a general denial, denial of signature, denial of consideration, and an allegation of failure of consideration. The record includes the plaintiff's affidavit of no defense and the defendant's affidavit of defense. The case was tried to a jury on January 22 and 23, 1936. The jury returned a verdict for the plaintiff for the amount of the note, plus interest. At the trial the genuineness of the signature was admitted and there was no evidence that any payment on account of principal had been made. It was agreed that interest had been paid on said note to May 1, 1933, the payment of interest due on May 1, 1933, being paid in December, 1933.
There was evidence that the plaintiff was unable to come to court and that he had suffered a shock in December, 1934, which left him with his left side paralyzed. Sarah A. Smith, wife of the plaintiff and sister of the defendant, was the only witness called for the plaintiff. There was evidence that the note in suit was delivered by the defendant in consideration of certain other notes, totaling $6,500, made by a company controlled by the defendant and given to the plaintiff as part of the consideration for his services to the company. The defendant contended that the original notes were gratuities, that, even if they were not, they had not been surrendered, and that the note in suit was a gratuity. Upon these issues the case went to the jury.
No evidence was offered or introduced by the defendant in support of his answer of payment. In direct examination he testified that he delivered the note to the plaintiff at the plant of the Nobscot Spring Water Company (of which corporation the defendant was president, treasurer and practically sole stockholder, and the plaintiff was superintendent until April 1, 1934). He did not testify that the note was delivered on Sunday, either in his direct or in his cross-examination, but in his examination by the judge he stated that he presumed that the note was delivered on Sunday and thought that he could recall that it was. The plaintiff's wife testified, in cross-examination, that the note in suit was delivered at her home in the presence of herself and the plaintiff on Sunday.
At the conclusion of all the evidence the defendant presented a motion to amend his answer by ‘ setting up the fact that the note is void because of being delivered on the Lord's Day.’ To the refusal of this motion the defendant duly excepted. The judge directed that the evidence in regard to the delivery of the note on Sunday be struck from the record, and the defendant duly excepted. The defendant further requested an instruction to the jury that ‘ If the note in suit was delivered by the defendant to the plaintiff on the Lord's Day, said note is void, and the Plaintiff cannot recover.’ The request was refused and the defendant duly excepted.
In the cross-examination of the defendant, the plaintiff's attorney asked certain questions bearing upon the bias or credibility of the witness, in view of his testimony that the note in suit was a gift or gratuity. A series of questions was asked the witness to which no exceptions were taken. The answers showed that shortly after the last payment of interest on the note in December, 1933, a legacy became due the plaintiff's wife under a will of which the defendant was executor, that the defendant tendered certain securities some of which were worthless, altogether having a market value substantially less than the amount of the legacy. The evidence showed that at the time of this controversy the defendant discharged the plaintiff from his employ and paid no further interest on the note. During the above line of inquiry the defendant duly excepted to the following question and answer: ...
To continue reading
Request your trial