Walling v. Cushman
| Decision Date | 07 March 1921 |
| Parties | WALLING v. CUSHMAN et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Superior Court, Suffolk County; W. P. Hall, Judge.
Suit by Eugene A. Walling, trustee in bankruptcy, against Henry O. Cushman and others, administrators, resulting in directed verdict for plaintiff, the case being reported to the Supreme Judicial Court. Judgment ordered to be entered on the verdict in accordance with the report.Lee M. Friedman and Friedman & Atherton, all of Boston, for plaintiff.
G. Philip Wardner, of Boston, for defendants.
The three notes in suit were made by the Boston Colorado Power & Water Company, a Colorado corporation having a usual place of business in that state, and were payable to its order. They were dated at Denver, Colo., and made payable at a trust company in that city. One of the indorsers was Matilda M. Chesbrough, the defendant's intestate, who was a director of the Company, and wife of Fremont B. Chesbrough, its president. The notes were discounted by the Bank of Trenton, Mich., a partnership of which the plaintiffs are trustees in bankruptcy. It was agreed that at maturity the notes were presented for payment at the place indicated therein, and were not paid; that they were duly protested, and proper notice given to each indorser. No issue was raised as to the bank having taken the notes for value without notice before maturity. The plaintiff offered the Colorado statute with reference to contracts of a married women, put the notes in evidence and rested. The defendants ‘offered to prove that by the law of Michigan Matilda M. Chesbrough was not liable on the notes in suit, and that by the law of Michigan she was not estopped to set up the invalidity of her indorsements on said notes.’ They further offered to prove that at the time ‘when said notes were indorsed and discounted Matilda M. Chesbrough was domiciled in Michigan.’ The presiding judge ruled that that evidence was immaterial, directed a verdict for the plaintiff, and reported the case, with the stipulation of counsel that, if the order for a verdict was correct, judgment should be entered thereon.
[3] The maker of a note is ordinarily deemed to have bound himself in accordance with the laws of the place where it is payable, where his contract is to be performed. See 5 R. C. L. 964; Cherry v. Sprague, 187 Mass. 113, 72 N. E. 456,67 L. R. A. 33, 105 Am. St. Rep. 381. As the contract of the indorser is a new and separate one, its validity is determined, as a general rule, by the laws of the state where the contract of indorsement is made; that is, where it takes effect by delivery. Lawrence v. Bassett, 5 Allen, 140;Akers v. Demond, 103 Mass. 318;Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241. This general rule, however, is not applicable when it appears from the special circumstances that the parties intended otherwise. And admittedly the presumption at common law is the same as that now formulated in the Negotiable Instruments Law (G. L. c. 107, § 69):
‘Except where the contrary appears every indorsement is presumed to have been made at the place where the instrument is dated.’
As already stated, these notes were dated as Denver, Colo., and payable there. It appears that the note described in the first count was made and indorsed in Illinois; but no one suggests that the parties had the law of that state in view as determining their legal liability. It does not appear where the other two notes were made and indorsed. Nor does it clearly appear that the obligation of the intestate first became complete by delivery of the notes in Michigan. Apparently the $50,000 of indorsed notes authorized by the corporation in March, 1912, were then delivered in Chicago to C. H. Lord, who assisted ‘in negotiating the bonds of Boston Colorado Power & Water Company and in arranging to finance the company and in raising money for its needs.’ As financial agent of the corporation he received the notes with authority to discount them whereever he could, and may have advanced his own money, so far as appears.
On this record the domicile of Mrs. Chesbrough was immaterial. Milliken v. Pratt, 125 Mass. 374, 377,28 Am. Rep. 241. We cannot infer, in order to overcome the legal presumption, that she indorsed the notes with a view to have them delivered in Michigan, knowing that she would not there be bound by her indorsement. Much less can we assume that the partners who carried on the Bank of Trenton knew that ‘M. M. Chesbrough’ was a married woman, domiciled in that state, and that they knowingly accepted delivery of a note with an indorsement...
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...the notes in question was made in this State and therefore governed by the laws of this State and not by the laws of Oklahoma. Walling v. Cushman, 130 N.E. 175; Heidelburger Heidelburger, 155 N.Y.S. 993; Spies v. National City Bank, 174 N.Y. 222; National Bank v. Kellogg, 183 N.Y. 91. S.W. ......
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...the law of the place where the note is payable." Rokowsky v. Gordon, 501 F.Supp. 1114, 1121 (D.Mass.1980) (citing Walling v. Cushman, 238 Mass. 62, 130 N.E. 175, 176 (1921)). Here, the Note does not list any place of payment,13 but "a demand note is payable at the place of residence of the ......
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