Whitney v. Clary

• Decision Date: 20 October 1887
• Parties: WHITNEY v. CLARY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 156

13 N.E. 393

WHITNEY v. CLARY.

Supreme Judicial Court of Massachusetts, Worcester.

October 20, 1887

Contract upon the following promissory note:

"$378. STERLING, March 16, 1883.

"For value received, I promise to pay to the order of John H Davis three hundred and seventy-eight dollars, on demand with interest.

his

"JAMES X CLARY.

mark.

"Witness: SUSAN P. GOODELL."

Indorsement: "March 16, 1883, rec'd $7."

The writ was dated August, 1885. The answer was (1) a general denial; (2) special denial of genuineness of signature; (3) want of consideration. At the trial in the superior court, the plaintiff proved his appointment as administrator of the estate of John H. Davis, and testified that he found it among the papers of the intestate. Plaintiff then called one Susan P. Goodell, who testified as follows: "I kept house for John H. Davis at Sterling from 1881 to 1885. That is my signature upon the note, [note in suit produced.] James Clary came to the farm at Sterling, where Davis lived. Davis and Clary were in the dining-room adjoining the kitchen. I was in the kitchen, and the door was ajar between the rooms. Davis wrote the note. I heard him read it to Clary. Then he stepped to the door and wanted me to put my name on the note to witness it. I went in there. Remember I took the pen out of Clary's hand, and wrote with the same pen. I did not see Clary do anything with the pen. Mr. Davis says: 'This is Mr. Clary, William's father, who is taking up William's note, giving his, and I want you to witness it.' Then I signed it. I read the note before I witnessed it. It was in the same condition then as now." On cross-examination, witness testified: "Mr. Davis told me it was a renewal of William Clary's note. Davis said he wanted a renewal because William had died. I do not remember that James Clary said anything. After signing the note, I immediately left the room. Was in the room only a short time. Do not know of any money being paid that day. I knew the amount of the note at the time, and have forgotten. I cannot testify to anything upon that note other than my handwriting. The rest of the note, except my name, is in Davis' handwriting."

This was all the material testimony offered by the plaintiff to prove the signature to said note. Plaintiff then rested his case. James Clary, the defendant, testified: "Did not know Davis till my boy William went to work for him eleven or twelve years ago. All the dealings I ever had with Davis was when I went to see my boy, and bought a cow, and gave my note for $50. Could not pay this note all at once; so paid it in two payments. Think I paid $40 first time. Gave a new note for balance, and he kept it till I paid balance. It was for the cow. Never signed a note for renewal of William's note. Saw Davis when I paid balance for the cow. Did not see Mrs. Goodell. Saw no one in the room. Did not stay long. Never got any money from Davis. Never saw the witness to note, Susan P. Goodell, at Davis' house, and never knew of her witnessing any note or other instrument signed by me. My son's name was William Henry Clary. He died 10 years ago last April. William borrowed $400 from Davis, and gave his note, and used the money in building a house upon real estate owned by him. Do not know if Davis held this note when he died. Do not know what became of it. Did not receive it from Davis since my son died. The only transaction I ever had with him was when I bought the cow and gave my note for it. Did not go there any time when Davis wrote a note, and read it to me. Nothing was said about taking up William's note. I was administrator of William Clary's estate. The date of administration was April 18, 1876."

It appeared that defendant was the only heir of his son William, who, at the time of his decease, owned the real estate upon which he had used the money loaned him by Davis. There was evidence that shortly before this action was brought, and since the death of Davis, defendant had conveyed certain real estate to one of his sons for a nominal consideration. This was all the material evidence offered to prove consideration of said note. The defendant then asked the court to rule that the plaintiff had not offered any evidence which would warrant the jury in finding that there was any consideration for said note, or that would warrant a verdict for the plaintiff. The court declined to so rule and gave other instructions which were not excepted to. The jury returned a verdict for the plaintiff for the amount of said note and interest, and the defendant alleged exceptions.

COUNSEL

A. Norcross, H.C. Hartwell, and C.F. Baker, for plaintiff.

The execution of the note was sufficiently proved, and the note was properly received in evidence. It was sufficient to bring the note within the rule given to constitute an attested note, viz.: "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 question with the making of the note." Drury v. Vannevar, 1 Cush. 276; Swazey v. Allen, 115 Mass. 594; 1 Greenl.Ev. § 569a. The silence of the defendant, under such circumstances, would amount to an adoption of the signature, if he had not himself written it. The request of the defendant for a ruling that the plaintiff had not offered any evidence which would warrant the jury in finding that there was any consideration for said note, or that would warrant a verdict for the plaintiff, was rightly refused. The signature having been proved, the note itself is prima facie proof of consideration. The evidence was...