Taylor v. Lewis

• Decision Date: 01 March 1888
• Citation: 15 N.E. 617,146 Mass. 222
• Parties: TAYLOR v. LEWIS et al. GIBSON v. LEWIS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 222

15 N.E. 617

TAYLOR

v.LEWIS et al.

GIBSON

v.LEWIS et al.

Supreme Judicial Court of Massachusetts, Middlesex.

March 1, 1888.

Exceptions from superior court, Middlesex county; KNOWLTON, Judge.

The first of these cases was an action of tort by the plaintiff, David Taylor, against Arrilla Lewis, as defendant, and Leander L. Gibson, administrator, trustee, to recover the balance due upon two promissory notes given by the defendant-one in 1878, and the other in 1881-to Leander L. Gibson, who was summoned in his representative capacity of administrator of Susan Gibson, as trustee of the defendant in the action. At the trial it was in evidence that Susan Gibson died October 19, 1884, and Leander L. Gibson was duly appointed the administrator of her estate, November 11, 1884, and that Arrilla Lewis was an heir at law of the estate of Susan Gibson, and entitled to a distributive share in her estate, and that Leander L. Gibson had never rendered any account as administrator. The notes were indorsed, “Without recourse,” by said Leander L. Gibson. The answer of the defendant was a general denial, and that the indorsement and transfer of the notes by Leander L. Gibson to the plaintiff, Taylor, were only nominal, colorable, and entered into at the request of said Leander L., and without consideration paid therefor on the part of the plaintiff, Taylor. The answer also set up payment. The plaintiff, Taylor, testified, among other things, that the notes were transferred to him in the office of the attorney of said Leander L. Gibson in October, 1886; that he was a son-in-law and resided with said Leander L. The defendant testified, among other things, that neither the payee, Leander L. Gibson, nor David Taylor, the plaintiff, had ever at any time demanded payment of the notes other than by bringing the writ in this action, and that she had never assigned or disposed of her interest in the estate of Susan Gibson. The defendant, in support of payment, also offered evidence tending to prove that in June, 1886, she and Leander L. Gibson entered into an oral agreement to and with each other that the balance due on said notes should be deducted from her distributive share of the estate of said Susan Gibson in payment of the same, to be taken therefrom before the final settlement of said estate, and that said agreement had never been annulled. The plaintiff objected to the introduction of this evidence, and the court ruled that the same was immaterial and incompetent, and excluded it. The jury returned a verdict for the plaintiff for the balance of the notes, and the defendant excepted.

The second action was by the plaintiff, Leander L. Gibson, administrator of the estate of Susan Gibson, against the defendants. Nelson G. Lewis and Arrilla Lewis, to recover the balance due on the following promissory note: “$300. FITCHBURG, MASS., December 15, 1880.

“For value received, I promise to pay Susan Gibson or her order three hundred dollars, on demand, ninety days from date.

[Signed] “NELSON G. LEWIS.

“ARRILLA LEWIS.”

It was admitted by the parties that the...