Vermont-People's Nat. Bank v. Parker

• Decision Date: 12 December 1929
• Citation: 169 N.E. 154,269 Mass. 387
• Parties: VERMONT-PEOPLE'S NAT. BANK v. PARKER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

269 Mass. 387

169 N.E. 154

VERMONT-PEOPLE'S NAT. BANK

v.PARKER.

Supreme Judicial Court of Massachusetts, Berkshire.

Dec. 12, 1929.

Exceptions from Superior Court, Berkshire County; Burns, Judge.

Suit by the Vermont-People's National Bank against Carroll Z. Parker. Verdict for plaintiff. On defendant's exceptions. Exceptions overruled.

H. Sherman, of Charlemont, for plaintiff.

J. O'Halloran and P. J. Ashe, both of North Adams, for defendant.

WAIT, J.

The plaintiff brought suit against the defendant upon four promissory notes. The defendant answered a general denial, payment, and the statute of limitations. After verdict for the plaintiff, the case is before us upon the defendant's exception to the refusal of the trial court to direct a verdict in his favor. Material facts which the jury could find are as follows:

The defendant and one Crosby were partners doing a general contracting business at Brattleboro, Vt., in 1913, and were then indebted to the Vermont National Bank upon sundry notes. In December of 1913, or January of 1914, the partners decided to go out of business. On going over their accounts, they found that the firm owed the defendant a sum which about equaled his liability on the outstanding notes. Crosby agreed to attend to this liability. The defendant moved from Brattleboro to North Adams, in this commonwealth, and has lived there since 1914. No formal notice of dissolution of the partnership was given to the bank. In 1920, indebtedness still remaining undischarged, the notes in suit were delivered by Crosby to the bank in renewal of notes of earlier date. They bore the signatures of Crosby & Parker, the firm, and of Crosby and of the defendant, the individual partners. The defendant does not deny his signature. Three of them recited collateral for their payment which had been deposited with earlier notes. The insurance policy, hereinafter referred to, was not set out. They bore dates in June, July, and August, 1920. On January 2, 1923, the Vermont National Bank was consolidated with the People's National Bank. Act Cong. Nov. 7, 1918, c. 209, § 2, 40 U. S. Stat. at Large, p. 1044 (12 USCA § 34). The consolidated corporation became the Vermont-People's National Bank, the plaintiff.

Each note bears in pencil a notation ‘Charged P. L. 2/16 1921,’ and each is indorsed with a partial payment as received on November 13, 1923. About October 19, 1915, Crosby assigned to the Vermont National Bank a life insurance policy upon his life as collateral upon the Crosby and Parker notes. Parker had no knowledge of this. Crosby died at some time prior to November, 1923, and on November 12, 1923, the Vermont-People's National Bank received $2,000 from the company which issued the policy. On November 13, 1923, it indorsed certain amounts upon these notes and applied the balance to a fifth note of the partnership. In 1927 the plaintiff's cashier wrote the defendant in regard to payment. His reply stated: ‘The condition of my finances are poor. I still owe the banks a lot of money, and have been out of work, but have an offer to sell cars and expect to take it.’ There was no evidence that Crosby and Parker had obtained any money from the Vermont National Bank at any time after they ceased to do business in 1913 or 1914. The plaintiff's writ was dated February 1, 1928.

There was no error in refusing to direct a verdict for the defendant. The introduction of the note bearing the unquestioned signature of the defendant was enough to entitle the plaintiff to go to the jury. The indorsement in pencil on the face of the notes, even if it meant that the Vermont National Bank had charged them to profit and loss before the consolidation with the People's National Bank, does not amount to proof of payment; nor of lack of title in the consolidated corporation, the plaintiff. Nor does the evidence establish that the plaintiff's claims have been barred by the statute of limitations as matter of law.

The statutory provision, G. L. c. 260, § 15, which secures the benefit of the bar of the statute to one joint contractor in spite of an acknowledgment, new promise, or payment made by any...