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(192 Mass. 526) BASS v. INHABITANTS OF WELLESLEY

(two cases). (Supreme Judicial Court of Massachusetts.

Norfolk. Sept. 5, 1906.) 1. BILLS AND NOTES-ACTION-FORGERY-EviDENCĘ.

In an action on certain notes against a town, evidence held sufficient to warrant a finding that two of the notes sued on were signed by the selectmen of the town at a meeting held on a certain date, and were subsequently sold by the town treasurer and purchased by plaintiff. 2. PAYMENT—FORGED NOTE.

Payment by a forged note does not constitute a valid payment of the debt.

[Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Payment, $8 63-69.] 3. BILLS AND NOTES

NOTES - PAYMENT FORGED NOTES.

Where plaintiff, who was the holder of valid notes executed by the selectmen of a town, surrendered the same in exchange for certain forged notes executed by the treasurer of the town under the mistaken belief that the treasurer was authorized to give notes in renewal, the surrender of the old notes did not operate to extinguish them, or to prevent plaintiff from showing that the notes accepted in renewal were forgeries.

[Ed. Note.For cases in point, see vol. 7, Cent. Dig. Bills and Notes, 1256.]

Report from Supreme Judicial Court, Norfolk County.

Actions by E. Adalaide Bass against the inhabitants of Wellesley. A pro forma finding in favor of plaintiff was entered in the first action and in favor of defendant in the second, and the case was reported to the Supreme Judicial Court. Affirmed.

Robert M. Morse, for plaintiff. Albert E. Pillsbury and Peabody & Arnold, for defendant.

& Co. and by them sold to the plaintiff. There are other questions but this seems to us to be the principal one. It is conceded that the third note was a genuine note, and the defense to that rests on other grounds than forgery. The two notes referred to bear date December 23, 1899. They did not appear upon the books kept by Jennings as town treasurer, and there was no entry on those books charging him with the proceeds, and they were not mentioned in his report to the town. They were surrendered to Jennings under circumstances hereinafter stated. At the time when they were issued he was a defaulter to the extent of $25,000. On December 27th he sold to R. L. Day & Co. two notes also of $5,000 each bearing date December 27th. These notes appear in his accounts and are admittedly genuine. The two notes bearing date December 23d were sold by him to Estabrook & Co. December 26th, for $9,552.50, being the face of the notes less the discount. Estabrook & Co. paid for the notes by a check payable to the order of the town of Wellesley which was indorsed by Jennings as treasurer, and on the same day deposited by him to the credit of the town in the Boston Safe Deposit & Trust Co. It does not appear whether the notes which the selectmen signed on December 19th were then dated, or if they were, what the date was, and the defendant contends that the circumstances are, to say the least, as consistent with the contention that they were the notes which were dated December 27th and sold to R. L. Day & Co. on that day, as with the contention that they were the notes dated December 23d and sold to Estabrook & Co. If the former was the case then it would seem to follow that the two notes dated December 23d and sold to the plaintiff were forgeries.

The selectmen kept no complete record of the notes which they signed or of the total amount which the town had borrowed. Meetings were held regularly every Tuesday evening and notes were usually signed at such meetings; but they were also frequently signed by them at their houses or places of business. Notes were usually signed two or three day before their date. The selectmen had a regular nieeting Tuesday evening December 19th, and one also on Tuesday evening December 26th. It is found, as already observed that two notes for $5,000 each were signed by the selectmen at the meeting which was held Tuesday evening December 19th, and it would plainly be more in accord with the usual course of business that these notes should have been dated December 23d than that they should have been dated December 27th, which would carry them by another meeting of the selectmen. In view of the fact that there would be a reg. ular meeting on the evening of December 26th, it can hardly be supposed that the notes signed on the 19th, would be dated as of the

MORTON, J. These two actions were tried and argued together. The only evidence offered was the auditor's report which it was agreed should be accepted in both cases as a finding upon the facts. It was also agreed tłat the only question of law to be deterinined were the questions arising upon his report and the pleadings. The court found for the plaintiff in the first action, and for the defendant in the second, and reported the cases upon the question whether the evidence contained in the auditor's report was sufficient in law to warrant these findings. The first action is upon three notes of which two are alleged to have been lost and the other to be in possession of the defendants. If the plaintiff prevails in the first action she does not seek to recover in the second.

We are of opinion that there was evidence sufficient to warrant a finding for the plaintiff in the first action. That case turns upon the question whether there was sufficient evidence to warrant a finding that the two notes, which, it is found, were signed by the selectmen at the meeting of December 19, 1900, were the two notes that were subsequently sold by Jennings to Eastabrook

27th. And if the date was written in at the They were not paid in cash at maturity but time when the notes were signed by the were surrendered to Jennings for what purselectmen on the 19th, the probabilities are ported to be a note of the town for $15,000. more in favor of its being the 23d than the This note is found by the auditor to have 27th. Or if, as quite likely, no date was been raised from $5,000 to $15,000. When written in, it is more probable that Jennings this note fell due it was also surrendered to procured the selectmen to sign them with

Jennings who gave what purported to be the expectation on their part and his that

a new note by the town for the same amount. they would be negotiated before the next

The auditor found that both of these notes meeting and that pursuant to such expecta

were forgeries; but, even if they were not, tion he dated them December 23d, but de

he ruled that the treasurer would have had layed or was prevented from disposing of

no right under the votes of the town to isthem till the 26th, than that he dated and

sue them in renewal of other notes. Abbott disposed of them on the 27th. Moreover Jennings was a defaulter, and it is not unrea

v. North Andover, 145 Mass. 484, 14 N. E. 754.

It is clear that payment by a forged note is sonable to suppose that he would seek to cov.

no payment. Central Nat. Bank v. Copp, 184 er up his defaication by procuring the selectmen to sign notes, which, according to the

Mass. 328, 68 N. E. 334; Nat. Granite Bank usual course of business he could easily

v. Tyndale, 176 Mass. 547, 57 N. E, 1022, 51 do and disposing of the notes thus signed

L. R. A. 447; Walker V. Mayo, 143 Mass. and depositing the proceeds to the credit of

42, 8 N. E. 873; Grimes V. Kimball, the town omitting all reference to them in

3 Allen, 518; Atkinson V. Inhabitants of his accounts. The fact that tue notes are

Minot, 75 Me. 189. The defendant contends not to be found and that they do not appear

that the plaintiff must be held, as a matter in the list of the genuine notes or in his ac

of law, to have taken the renewal notes counts is not necessarily inconsistent with

with knowledge of the treasurer's want of their genuineness. To have entered them authority to issue them, and that therefore of record would have made his detection more

her surrender of the old notes and acceptance certain if and when his accounts were exam

of the new operated to extinguish the former. ined. There is nothing to show that the That would give to a presumption of law selectmen signed more than two notes on the greater effect than would be given to the act19th, or that more than two notes were

ual fact. If the plaintiff had had actual signed by them between that and the 27th, knowledge of the treasurer's want of authorand it would seem highly improbable that ity she would not have surrendered the old with two genuine notes of $5,000 each in his notes at all except upon payment or the repossession undisposed of Jennings would ceipt of others equally good. The most forge two others of the same amounts and that can be fairly said is that she was mistakdate them the 230. The plaintiff is not en as matter of law in thinking or assuming bound to exclude the possibility that the that the treasurer could give notes in renewtwo notes which the selectmen signed on al, and that fact operated with his implied the 19th were those that were dated and representation that the renewed notes were sold the 27th, but only to show by a fair pre valid to induce her to surrender the old notes ponderance of the evidence with all reason and accept the renewed notes in place thereable inferences therefrom that they were of. A surrender of the old notes under such the notes declared on. Woodall v. Boston circumstances would not operate to extinElevated Ry. Co. (Mass.) 78 N. E. 446. And guish them, or to prevent the plaintiff from we are of the opinion that she has done so, showing that the notes accepted in renewal or at least, that it cannot be said that there were forgeries. was not evidence warranting such finding. The result is that in each case the judge

The three notes which are the subject of ment is to be affirmed. the first action fell due in December, 1900. So ordered.

(185 N. Y. 603)

cision and judgment for alleged lack of WILLIAMSON V. RANDOLPH. power under the Constitution), any power (Court of Appeals of New York. June 19, to impose the condition that such new trial 1906.)

be had upon the minutes of the former NEW TRIAL-MATTER OF RIGHT-DISQUALIFI trial before such justice, either alone or CATION OF JUDGE BEFORE JUDGMENT.

with such additional evidence as the parWhen a justice of the Supreme Court has been designated, and has actually begun, to sit

ties may introduce upon such new trial?" in the Appellate Division, before he has settled William V. Rowe and William F. Corand signed a formal decision in writing and a judgment, but after he has handed down his

liss, for appellant. Flamen B. Candler, for opinion announcing his rulings on the facts and respondent. law, and directing judgment for defendant and the submission of findings, and such justice

PER CURIAM. Order restoring cause refuses to settle and sign such a decision and judgment, for alleged lack of power, under the

to calendar affirmed, without costs, but with Constitution, because of such designation, plain disbursements, but first question certified tiff has an absolute right to a new trial, with

answered in the affirmative, second in the out terms or conditions.

negative. Appeal from Supreme Court, Appellate Division, First Department.

CULLEN, C. J., and GRAY, EDWARD Action by Harry L. Williamson against T. BARTLETT, WERNER, HISCOCK, and Lewis V. F. Randolph, as president of the CHASE, JJ., concur. O'BRIEN, J., not votConsolidated Stock & Petroleum Exchange ing. of New York. From an order of the Supreme Court, Appellate Division (97 N. Y.

(192 Mass. 522) Supp. 949) affirming an order of the Special Term, defendant appeals. Affirmed.

TAINTOR v. THURSTON et al. Appeal, by permission, from an order

(Supreme Judicial Court of Massachusetts.

Middlesex. Sept. 4, 1906.) of the Appellate Division of the Supreme

1. MUNICIPAL CORPORATIONS - STREETS - EsCourt in the first judicial department, en

TABLISHMENT_PROCEEDINGS. tered March 9, 1906, which affirmed an or Proceedings for the laying out and esder of Special Term restoring the above tablishment of a street, begun before one council entitled case to the Special Term calendar.

and board of aldermen, may be continued be

fore succeeding councils and boards of aldermen, The following questions were certified:

and finally completed by a council and board "1. When a justice of the Supreme Court composed of different members from that before has been designated and has actually begun which the proceedings were instituted and by to sit in the Appellate Division before he

which the parties have been heard.

2. SAME-VIEW. has settled and signed a formal decision

Rev. Laws, c. 48, $ 94, providing that the in writing and a judgment in an action, all

law in regard to the laying out of highways of the issues of fact and of law in which by county commissioners shall apply to the layhave been tried before him at Special Term,

ing out of streets in cities so far as applicable, but after his opinion has been handed down,

except as may be otherwise provided by the

charter or by special laws, and requiring counspecifically announcing his rulings on the ty commissioners to view such proposed highfacts and the law, and directing judgment ways, does not require that a view of a city for the defendant, with costs, and the sub

street about to be established should be taken

by the entire city council, as distinguished mission of findings upon uotice; and when

from the joint committee on highways, to which such justice has refused to settle and sign the petition for the laying out of the street was such a decision and judgment, for alleged

referred. lack of power, under the Constitution, due

[Ed. Note. For cases in point, see vol. 36, to such designation, has the plaintiff in such

Cent. Dig. Municipal Corporations, $ 800.] action, whose right to relief therein is de

3. SAME-ORDER-FINAL ADOPTION-HEARING.

Where objectors to the laying out of a nied in said opinion, an absolute right to

street were afforded several opportunities to be a new trial, without terms or conditions, heard in the course of the proceedings, they solely by reason of such designation and were not entitled to another hearing on the refusal?

final adoption by the city councii of the order “2. Has the Supreme Court, or

laying out the street. a justice

[Ed. _Note.-For cases in point, see vol. 36, thereof, in granting an application for a

Cent. Dig. Municipal Corporations, $ 799.] new trial, made by the plaintiff in an action (all of the issues of fact and of law in

Report from Supreme Judicial Court,

Middlesex County. which have been tried at Special Term be

Petition by Giles Taintor for writ of cerfore a justice of said court, who has handed down his opinion directing judgment for

tiorari against one Thurston and others, the defendant, with costs, and the submis

comprising the mayor and city council of the sion of findings on notice, but thereafter

city of Cambridge. An order was entered and before settling and signing a decision

denying the writ, and the case was reported in writing and a judgment, has been des

Petition for hearing before the full court.

dismissed. ignated and has actually begun, to sit in the Appellate Division, and consequently Giles Taintor, pro se. Gilbert A. A. Pevey, has refused to settle and sign such a de for respondents.

78 N.E.-35

MORTON, J. This is a petition for a writ convenience and necessity, and that there of certiorari to quash the proceedings of the was no hearing by the city council on the respondents as mayor and city council of the final laying out of the street and taking of city of Cambridge in accepting and laying the petitioner's land. out a certain street in said Cambridge called The proceedings were begun in June, 1902, Brown street. The petitioner is an abutting and completed in December, 1905, and it is owner whose land was taken in the laying apparent we think, from an examination of out of the street. The presiding justice the copies of the records of the board of found that the allegations of fact contained aldermen, and of the common council, and in the answer of the respondents were true, of the board of survey which are annexed to and thereupon ruled that no error of law ap and form a part of the answers of the depeared. He further found that substantial fendants and which in their allegations of justice did not require the writ to be issued fact must be taken as true under the finding and dismissed the petition, and, at the re of the single justice, that the petitioner had quest of the petitioner, reported the case to full notice and an opportunity to be heard the full court, such order to be entered as in regard to all matters connected with the law and justice may require.

laying of the street and the taking of his We think that the ruling was right. One land where a hearing was required or he question, if not the principal one, is whether was entitled to one. The petitioner contends proceedings in relation to the laying out that the law in regard to the laying out of of a street begun before one council and highways by county commissioners applies board of aldermen 'may be continued before to the laying out of streets in cities. But it succeeding councils and boards of aldermen applies "only so far as applicable," and "exand finally completed by a council and board cept as may be otherwise provided by the of aldermen composed of different members charter or by special laws." Rev. Laws, C. from that before which they were instituted 48, § 94. It is manifest that provisions in and by which parties have been heard. A regard to a view applicable to a small body city council is a continuous body though its consisting of three like the county commismembers and its officers may change from sioners, would be inapplicable to a numerous time to time. See Collins v. Holyoke, 146 | body like a city council, and there is nothing Mass. 298, 15 N. E. 908; Fairbanks v. Fitch in the city charter of Cambridge which reburg, 132 Mass. 42. In recognition of this quires that a view should be taken by the the city charter of Cambridge provides that city council or which prevents it from being "every officer of the city shall unless sooner taken, as it was in this case, by the joint removed continue after the expiration of his committee on highways, to which the petition term of service to hold his office until his for the laying out of the street was referred successor is appointed or elected and duly by the board of aldermen, the charter requalified.” St. 1891, p. 941, c. 364, § 33. In quiring that action should be first taken by the transaction of business that may come that board. There is nothing which requires before them the members of one city council that another view should be had at the remay properly refer unfinished matters to

quest of a party interested if one has already those who are to succeed them and succeed been taken. ing members may adopt or acquiesce in the The committee on highways having taken official action of their predecessors upon such a view gave a hearing on the question of matters. They are not obliged in every case laying out the street, of which the petitioner to begin de novo. In the laying out of a had due notice, but at which he was not street the members of a city council act as present. The committee reported to the city public otficers in the discharge of duties ap council recommending the laying out of the pertaining to the office which they hold, and street and the adoption of an order accomto the municipality which the council repre panying the report providing for notice and sents. And it follows from the continuous a hearing in regard to the intention of the nature of the body, and the purely official re city council to lay out the street. The order lation which those who compose it sustain began by reciting that public convenience to it, that the laying out of a street begun and necessity required that the street should and partly heard or finished before one coun be laid out, and was adopted by the city cil and board of aldermen may be completed council at a meeting after due hearing in before another council and board of alder joint convention of which the petitioner and men. So far, therefore, as the petitioner re all others interested had notice, and constitulies upon the contention that a part of the ed an adjudication by the city council that proceedings took place and hearings were public convenience and necessity required had before some other council and board of the laying out of the street. Subsequently a aldermen than those of 1903, which finally hearing was had by the city council, also in completed the laying out of the street and joint convention, of which the petitioner and the taking of land therefor, his contentions all others interested had notice and at which must fail.

the petitioner was present in regard to the The petitioner further contends that the intention of the city council to lay out the city council should have taken a view that street and take the land necessary therefor. there was no adjudication by it of public This was in November, 1902. In December,

101.]

without any further action on the part of of its own force ends the proceeding in the acthe city government of 1902, the matter was

tion. referred by it to the board of survey, a body

[Ed. Note.-For cases in point, see vol. 4,

Cent. Dig. Arbitration and Award, 88 97, 98, which had been established under St. 1900, p. 348, c. 405, amended by St. 1903, p. 294, c.

4. SAME-STATUTORY SUBMISSION. 436. The board of survey took a view and Where a submission to arbitration departgave hearings of which the petitioner and ed from the statutory form prescribed by Rev. others interested had notice, and at one of

Laws, c. 194, in providing that no hearing

should be had except in the discretion of the which at least the petitioner was present.

arbitrators, and for the selection of "some The board voted to change the proposed lay reputable physician" as a referee, if the arbiout and so reported to the city council. trators named were unable to agree, such proThereupon the matter was referred again by

visions were matters of substance, and rendered

the submission void as a statutory submission. the city council to the joint committee on

(Ed. Note.-For cases in point, see vol. 4, highways, which took another view and gave Cent. Dig. Arbitration and Award, 88 38, 47.] a hearing on the laying out of the street as

5. SAME-TRIAL. altered by the board of survey, of which the Where defendant elected to treat a submispetitioner and others had due notice, and re sion to arbitration as a statutory submission, ported recommending the adoption of an

and the submission was void as such, it was not

error for the court to disregard the arbitration order which recited that public convenience and proceed to trial. and necessity required that the street should be laid out, and provided for the giving of

Exceptions from Superior Court, Suffolk notice to all parties interested of a hearing County; Frederick Lawton, Judge. in regard to the intention of the city counci)

Actions by Lucy S. Nay and by George M. to lay it out and take the land therefor. This

Nay against Boston & Worcester Street Railwas referred to the next city government by

way Company. From an order of the suwhich it was again referred to the joint com

perior court rejecting an award of arbitrators mittee on highways, which reported recom

and dismissing an order of reference, defendmending the adoption of an order substantial

ant appeals; and from the court's refusal to ly like that last above referred to, which was

rule according to defendant's request, it done, and a hearing was had in joint conven

brings exceptions. Appeal dismissed. Extion, at which the petitioner appeared. The

ceptions overruled. result of the matter was that the question Edwd. N. Carpenter, for plaintiffs. Guy of laying out the street was again referred Murchie and Jas. F. Bacon, for defendant, to the next city government, that of 1905, by which on the recommendation of the joint LORING, J. The parties to these two accommittee on highways to which the matter tions at law might have submitted to arbihad been referred and which took still an tration the matters in dispute between them other view and gave still another bearing, the

by a submission in pais, a submission under order laying out the street was finally adopt the statute, or by a rule of court made in the ed. It is plain, we think, that the petitioner

two actions. If the first method of procedure was not entitled to be heard upon the final had been adopted, the only way of enforcing adoption by the city council of the order the award would have been by an action on laying out the street, and we see no error of the award when made. If the second had law in the proceedings, or in the finding that been adopted, it would have been an inde substantial justice did not require the issu- pendent proceeding in court. The third mething of the writ.

od of procedure is the only method which Petition dismissed with costs,

proprio vigore would have ended the further prosecution of these two actions.

Had it not been for the first second and (192 Mass. 517)

thirty-first rulings asked for by the defendant, NAY Y. BOSTON & W. ST. R. CO. it might have been somewhat difficult to (two cases.)

decide which method of submission to arbitra(Supreme Judicial Court of Massachusetts. tion the parties in these actions intended to Suffolk. Sept. 4, 1906.)

take. On the one hand the submission in 1. ARBITRATION AND AWARD-ENFORCEMENT.

the main is in the terms of a statutory Where a dispute is submitted to arbitration submission under Rev. Laws, C. 194. On in pais, the only way of enforcing the award is the other hand it was filed in the two ac by action thereon.

tions and "allowed" by the court. (Ed. Note.-For cases in point, see vol. 4, Cent. Dig. Arbitration and Award, $ 457.]

But the defendant is bound by its first,

second and thirty-first requests for rulings, 2. SAME. Where a dispute is submitted to arbitra

in which it in effect asked that the submistion by a submission under Rev. Laws, c. 194, sion should be treated as a submission under providing therefor, the award must be enforced

the statute. As a statutory submission it by an independent proceeding in court.

is void. It departs from the form pre[Ed. Note. For cases in point, see vol. 4, Cent. Dig. Arbitration and Award & 457.1

scribed in Rev. Laws, C. 194, in providing in & SAME.

substance (first) that no hearings are to be Where a dispute is submitted to arbitra had except in the discretion of the arbitrasion by a rule of court made in an action, this tors, and (second) for the selection of “some

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