Starks v. O'Hara

• Decision Date: 28 February 1929
• Citation: 266 Mass. 310,165 N.E. 127
• Parties: STARKS v. O'HARA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

266 Mass. 310

165 N.E. 127

STARKS

v.O'HARA.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 28, 1929.

Exceptions from Superior Court, Suffolk County; Joseph Walsh, Judge.

Action by George L. Starks against John F. O'Hara, with trustee process. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

C. A. McCarron and L. H. Leary, both of Boston, for plaintiff.

C. J. Halligan, Jr., of Boston, for defendant.

FIELD, J.

This is an action by the payee of three promissory notes against the maker. The plaintiff produced the notes, which were dated April 23, 1925, and were payable on demand with interest and ‘reasonable attorney's fees,’ and the defendant's signature on each note was admitted. The plaintiff also introduced in evidence a mortgage deed of the same date of land in Florida which was given by the defendant to him as security for the notes.

The defendant introduced in evidence a deed from the plaintiff to the defendant dated April 1, 1925, of the land covered by the mortgage deed. Testifying in his own behalf he sought to introduce in evidence a conversation alleged to have taken place and been overheard by him on or about April 1, 1925, in the office of one Murray, a real estate agent in West Palm Beach, Florida. This testimony was excluded, and the defendant offered to prove ‘that the plaintiff, Starks, stated to Mr. Murray that he needed money, and that for $1,000, he would deed his property and take notes for the balance, which notes would run with the land, and that the purchaser would have the right to sell the land subject to his mortgage.’ The witness was then asked: ‘And in April of 1925, as a result of the conversation with him, and as a result of the conversation with Mr. Murray, did you purchase, or did you receive a deed for that property in Florida?’ The question was excluded and the defendant offered to prove an affirmative answer. The judge then directed the jury to retire stating, ‘You see, Mr. Foreman and Gentlemen, I am of opinion as a matter of law, that when you make a note that is conclusive evidence of what you are doing; that you can't show when you gave the note it wasn't to be paid.’ In the absence of the jury the judge stated to counsel for the defendant that he would not receive an offer of proof, and directed him to ‘put your evidence right here on the record from the mouth of the witness in the absence of the jury.’ Thereupon, in the absence of the jury, the defendant testified to certain conversations and acts subsequent thereto. The judge excluded the evidence so offered, and the defendant made the following ‘inclusive’ offer of proof: ‘The plaintiff stated in the hearing of the defendant to his agent, through whom the defendant took his deed, that he wanted some ready money, and that if the defendant would take a flier, he would give him a good and clear deed for $1,066.50, that that would be all the plaintiff wanted, that the notes were merely matters of form, because he would look to his land on which he would have a mortgage covering the balance $2,554. The plaintiff's agent stated in the presence of the plaintiff that he would never look to the defendant for the payment of the notes, but that the defendant could sell the land and have his grantee assume the mortgage, and that he, the plaintiff, would look for payment to the defendant's grantee, or his land.’ Then the jury was recalled, and the judge stated to them that he was of opinion ‘that the evidence offered by the defendant relative to these notes is not a defense as a matter of law.’ He instructed them ‘to return a verdict for the plaintiff on these notes in the sum of $2,845.49, that being the amount which the parties have agreed is due on these notes, if anything,’ and left to the jury the question as to what was a reasonable attorney's fee. There was a verdict for the plaintiff in the sum of $3,138.23. The defendant alleged exceptions to the refusal of the judge to receive an offer of proof and to his direction to the defendant to put in his evidence in the absence of the jury; to the exclusion of evidence; to the statements of the judge to the jury; and to the direction of a verdict.

There was no error in the refusal of the judge to receive the defendant's offer of proof and his direction that the evidence be produced in the absence of the jury. If he had any doubts about the good faith of the offer, he could insist on the production of the witness and on some attempt to make proof. Scotland County v. Hill, 112 U. S. 183, 186, 5 S. Ct. 93, 28 L. Ed. 692. The admissibility of the evidence offered was for him to determine. Coghlan v. White, 236 Mass. 165, 169, 128 N. E. 33;National Surety Co. v. Portnoy, 256 Mass. 329, 152 N. E. 363. It was not improper to direct the jury to retire while he heard it. Slotofski v. Boston Elevated Railway, 215 Mass. 318, 320, 102 N. E. 417; National Surety Co. v. Portnoy, supra. The contention, that by this action of the judge the defendant was deprived of his constitutional right to a trial by jury, is without merit. As in the absence of the jury the judge...