Swazey v. Allen

• Decision Date: 28 September 1874
• Citation: 115 Mass. 594
• Parties: George W. Swazey v. Edmund C. Allen
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

115 Mass. 594

George W. Swazey v. Edmund C. Allen

Supreme Court of Massachusetts

September 28, 1874

Hampden. Contract on a promissory note, dated April 11, 1854 and purporting to be signed by the defendant, and witnessed by A. H. Allen. Writ dated May 24, 1873. The answer set up the statute of limitations.

At the trial in the Superior Court before Wilkinson, J., the plaintiff's counsel stated in opening that the note declared on was signed by the defendant at the time of its date; that no person being present but the parties, it was not then witnessed, but the parties agreed it should subsequently be signed by some person as a witness; that some four years afterwards the parties being together, the defendant, in the presence of A. H. Allen, acknowledged that the signature to said note was his, and the parties then requested Allen to sign it as a witness, to prevent the operation of the statute of limitations, and he did so. Upon proof of these facts the plaintiff's counsel said he should contend that the note was not barred by the statute of limitations. The presiding judge ruled that if the facts were proved, the action could not be maintained, and a verdict was thereupon taken for the defendant, and the plaintiff alleged exceptions.

Exceptions sustained.

E. B Maynard, for the plaintiff.

G. M. Stearns, for the defendant. 1. With the attestation the note is in fact a different legal contract from what it would be without. Smith v. Dunham, 8 Pick. 246, 249. It was not competent to show by parol that the parties, as an additional contract, agreed at the time of making, that the note should thereafter be changed into a different legal contract than it purported to be. Billings v. Billings, 10 Cush. 178. Kelly v. Cunningham, 1 Allen 473. Tower v. Richardson, 6 Allen 351. Currier v. Hale, 8 Allen 47.

2. The case then stands upon a subsequent meeting of the parties to the note and the signing of the same by the witness, as such, with the consent of both parties. "In order to constitute an attestation of a note, the witness must put his name to it openly and under circumstances which reasonably indicate that his signature is with the knowledge of the promisor and is a part of the same transaction with the making of the note."Drury v. Vannevar, 1 Cush. 276. Smith v. Dunham, supra. No agreement or consent that the note shall be deemed or considered an attested note, even if written upon the note, will take it out of the statute of limitations. Walker v. Warfield, 6 Met. 466. There was no offer of evidence that the parties undertook to deliver the note after it was witnessed, as a new and original note, but they undertook by their act to engraft upon the old note the character of an attested note.

Wells J. Morton & Endicott, JJ., absent.

OPINION

Wells, J.

The note in suit purported to bear the attestation of a witness so as to come within the exception to the general statutes limiting such actions to six years. Gen. Sts. c. 155, § 4. Upon the question of the...