(148 N.E.) note by payee in repayment of amount overpaid maker held sufficient consideration. Payee's acceptance of note in repayment of amount which he had overpaid maker was sufficient consideration. [14] 11. Requests 12 and 13, relating to | 6. Bills and notes 94(2) the cancellation of certain portions of the General Electric Company's contract with the defendants, were refused properly. Even if that company canceled portions of its contract, it would not be conclusive that the defendants were entitled to cancel their contract with the plaintiff, and as we construe the bill of exceptions, the General Electric Company never did cancel any part of its contract. These instructions, therefore, became immaterial. 12. The testimony of the witness Moore was not subject to exception. We have examined all the questions argued in the defendant's brief. We find no error in the conduct of the trial. Exceptions overruled. 7. Bills and notes 370-Absence of consideration not defense if plaintiff holder in due course. In view of G. L. c. 107, § 74, absence of consideration of note would not be defense as against holder in due course. 8. Sunday 13-That note made and dated on Sunday held not to invalidate it. does not of itself render it invalid, unless there That a note was made and dated on Sunday was delivery on Sunday. 9. Sunday 23-Evidence held to warrant finding that note was not delivered on Sunday. Payee's evidence held to warrant finding BANCA ITALIANA DI SCONTO v. COLUM- that it was not delivered on Sunday. BIA COUNTER CO. (Supreme Judicial Court of Massachusetts. Suffolk. May 25, 1925.) I. Bills and notes 517 Finding that note was executed by maker's president held warranted. Evidence held to warrant finding that defendant's president executed note, claimed to be a forgery, notwithstanding his testimony to the contrary. 2. Corporations 432 (12)-Evidence held to show execution and delivery of note by president and assistant treasurer were ratified. Evidence held to warrant finding that execution and delivery of note by president and assistant treasurer of corporation were ratified by its officers, stockholders, and directors. 3. Corporations 426 (6)-Ratification of of. ficers' execution of note need not be by formal 5. Corporations ~426 (1) Ratification may be found from acts presumed to have been performed under corporation's authority. Ratification of officer's act may be inferred from corporate acts, which may be presumed to have been performed under corporate authority, 12. Trial 251 (7)—Whether note construed by law of Italy or Massachusetts being immaterial, requests on subject properly denied. It being immaterial whether note was to be construed by laws of Italy or those of Massachusetts, where there was no evidence that it was invalid in either jurisdiction, requests on that subject were rightly denied. 13. Trial 253 (5)-Denial of request excluding liability on ground of ratification held without error. ecuted by its president and assistant treasurer, In action against corporation on note exdefendant's requests that, if by its by-laws it did not authorize president to sign note, and if by-laws expressly provided that such notes could be signed for it only by treasurer or assistant treasurer as such, it was not liable, were rightly denied, as they excluded liability on ground of ratification. 14. Trial 260 (1)-Refusal of requests covered by charge held without error. It was not error to refuse requests which were covered by the charge. 15. Witnesses 240 (2)-Trial judge has discretion to permit leading questions on direct examination. It is within discretion of judge to allow leading questions on direct examination. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 16. Appeal and error 1043 (6)-Defendant not harmed by admission of answer to crossinterrogatory; deponent having given same testimony in answer to direct interrogatory. Defendant was not harmed by admission of answer to cross-interrogatories, where deponent had previously given substantially the same testimony in answer to direct interrogatory. 17. Depositions 65 Cross-interrogatories as to whether maker of note tendered merchandise to payee and details thereof properly admitted. In action on note, alleged to have been given by maker to reimburse payee for amounts paid to maker for goods not ordered, plaintiff's cross-interrogatories to payee as to whether merchandise was tendered by maker or one acting on its behalf, and, if answer was in affirmative, then to state nature of merchandise and details of shipment and acceptance, were properly admitted. 18. Depositions 65-Objection to cross-interrogatory, on ground that delivery of note in suit was assumed, not sustained. Exception to cross-interrogatory, on ground that delivery of note in suit was assumed but had not been proved, cannot be sustained, where deponent had previously testified without objection that defendant's Italian representatives had delivered the note. "(3) If the instrument sued on was given to be used for an illegal purpose, the plaintiff cannot recover. "(4) If the person who signed the instrument sued on signed it without authority of the defendant, the plaintiff cannot recover." "(6) The instrument being payable in Boston, Mass., is governed by the law of Massachusetts. "(7) If the law of a foreign country is not proved, then the law of Massachusetts is applicable to the case. "(8) Even if the instrument were valid in the country where it is alleged to have been made, it is invalid in Massachusetts if the jury finds that it was made on Sunday and was payable in Massachusetts. "(9) If the instrument sued on, even if a valid instrument in the country where it is alleged to have been made, would be invalid or void if made in Massachusetts, it cannot be enforced in Massachusetts. "(10) Even if the instrument is valid where it is alleged to have been made, it cannot be enforced in Massachusetts if such enforcement would be against a Massachusetts statute or against public policy. Sunday and payable in Massachusetts, it can"(11) If the instrument sued on was made on not be enforced or collected in Massachusetts, because such enforcement or collection would be in violation of Massachusetts statute law and against public policy. "(12) If the jury finds that the signature upon the instrument sued on was forged or made without authority of Charles D. Malaguti, then the instrument is wholly inoperative and the plaintiff cannot recover. G. L. 107, § 45. "(13) If the jury is satisfied that the title of Alinovi Guisseppi to the instrument sued on was defective, then the burden is on the plaintiff to prove that it is a holder in due course. G. L. 107, § 82. "(14) If the by-laws of the Columbia Counter Company do not give authority to its president to sign instruments such as that sued on, then the defendant is not liable in this case. "(15) If the by-laws of the defendant Columbia Counter Company expressly provide that instruments like that sued on may only be signed for the company by its treasurer or as 21. Appeal and error 1078(1)-Motions not sistant treasurer acting as such, then the deargued are waived. Motions which are not argued are waived. Exceptions from Superior Court, Suffolk County; John D. McLaughlin, Judge. Action of contract by the Banca Italiana Di Sconto against the Columbia Counter Company, to recover on promissory note of which plaintiff was indorsee. Case was tried with action brought by same plaintiff against Charles D. Malaguti, president of the Columbia Counter Company. Finding for plaintiff, and defendant excepts. Exceptions overruled. The defendant also presented the following requests for rulings: "(1) If the instrument sued on was made on Sunday, it is void, and the plaintiff cannot recover in this action." fendant is not liable in this case. "(16) If an officer of the defendant corporation signed the instrument sued on without authority of the corporation the corporation is not liable unless there was express ratification of the act by the corporation. "(17) If the jury finds that the Columbia Counter Company is liable on the instrument sued on, then it must find that Charles D. Malaguti is not liable. "(18) If the jury finds that Charles D. Malaguti is liable as alleged in the suit against him, ble on the instrument sued on in the suit then the Columbia Counter Company is not liaagainst it." "(21) If February 29, 1920, was Sunday, and the instrument sued on was payable in Boston, Mass., then all holders of the instrument are presumed to have taken it in contemplation of the Massachusetts law with respect thereto and full knowledge that under Massachusetts law the instrument was illegal and void. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (148 N.E.) "(22) If the date on the instrument was filled in at some subsequent time to the making and the date thus filled in was Sunday and the instrument sued on was payable in Boston, Mass., then all holders in the instrument are presumed to have taken it in contemplation of the Massachusetts law with respect thereto and full knowledge that under Massachusetts law the instrument was illegal and void." "(h) Was it shipped in accordance with the requirements of the contract? The plaintiff read cross-interrogatory No. 7 of Alinovi's deposition as follows: "(7) If your answer to the defendant's interrogatory No. 7 is in the affirmative, state fully the terms of said contract including when and where delivery was to be made and when payment was to be made, where it was to be made, and the kind of money in which it was to be made." The defendant objected to the admission of this interrogatory on the ground that it was predicated on an affirmative answer to the defendant's direct interrogatory No. 7 and that the deponent had not answered that interrogatory in the affirmative. Direct interrogatory No. 7 and its answer are as follows: "(7) Did you at some time in the years 1919 or 1920, or at any other time, buy from the Columbia Counter Company certain leather invoiced to you for $23,628.51, upon which there were freight charges of $194.61, insurance charges of $418.91, making a total bill to you of $24,242.03? "Answer: About 1919 I bought leather from the Columbia Counter Company, amounting to a total of about $100,000, in two invoices, neither of which was for the amount of $24,242.03." The court admitted the answer subject to the defendant's exception, the witness deposing in answer thereto that the merchandise was to be delivered to him at Parma, no date being fixed for delivery, and payment was to be made by giving the draft for 30 days after arrival of goods in Italy, payment to be made at Parma in dollars. The court also admitted, subject to the defendant's exception, based on the same objection, cross-interrogatories 8 and 9, which read as follows: "(8) Was merchandise purporting to be that called for by the contract referred to in your answer to the preceding interrogatory tendered to you by the defendant or any one acting on its behalf? "(9) If your answer to the preceding interrogatory is in the affirmative, state: "(a) When it was shipped? "(b) From what port it was shipped? "(e) Did you at any time examine it, and when and where? "(f) Was it in fact a compliance with the terms of the contract, and, if not, in what respect did it fail to comply? "(g) Did it arrive at the place where it was to be delivered to you at the time stated in the contract, and, if not, how late was it? "(i) Did you accept it upon arrival? "(j) Did you refuse it upon arrival or any other time, and, if so, when? "(k) Did you accept it at any time, and, if so, when? "(1) Did you insist on any act on the part of the defendant as a condition of your accepting delivery of the said goods? "(m) If so, what was the condition, and when and how was it performed?" M. C. Taylor, of Boston, for plaintiff. F. W. Mansfield and E. R. Mansfield, both of Boston, for defendant. CROSBY, J. This is an action on a promissory note, brought by an indorsee against the defendant. The note was written in the Italian language. According to the translated copy set forth in the record, it is dated February 29, 1920, payable to Joseph Alinovi, at the Prudential Trust Company in Boston, and purports to be signed "Columbia Counter Company, Charles D. Malaguti, President." It was indorsed by the payee to the order of the plaintiff. At the trial it was agreed that February 29, 1920, was Sunday. The defendant denied making the instrument and contended that it was a forgery; it also denied that Malaguti had any authority to sign it for the defendant; that being dated on Sunday, it was void; that it was without consideration; and that the plaintiff was not a purchaser for value. The case was tried with a second action brought by the plaintiff against Malaguti personally, wherein it was alleged that he was not authorized to make the note and damages were sought for such alleged unauthorized act. The jury found for the plaintiff in the first case and for the defendant in the second. At the date of the note and previously thereto Alinovi, the payee, was a manufacturer of shoes in Parma, Italy. The defendant is a Massachusetts corporation dealing in shoe supplies, shoe counters and upper leather, with a place of business in Boston. There was evidence tending to show that in August and September, 1919, the defendant sold and shipped to Alinovi forty-one cases of leather, amounting in all to about $100,000; that one of these shipments was invoiced at $17,566.20, and another at $6,024.35, the two together $23,590.55, being the exact amount of the note in suit; that in the shipments there were certain goods not ordered; that Alinovi accepted those that conformed to his order, rejected the rest, and notified the defendant that the latter were held in his storehouse subject to its order. There was further evidence to show that, to get the goods ordered, it was necessary for Alinovi to pay a draft for the entire lot, which he did. He testified by deposition that he requested Malaguti for payment of the leather which was not ordered; that the latter replied he did not have the money but would send it through the defendant's representatives in Milan, Antonioli and De Pol, by draft for the amount covering the rejected leather; that the instrument in question, which seems by the parties to have been considered as a draft, was delivered to Alinovi by De Pol in March, 1920; that he indorsed it (it being agreed that it is a promissory note in form) and delivered it to the plaintiff at Parma; that it was discounted by the plaintiff and the proceeds were credited to Alinovi's account. [1] Upon the question whether the note was a forgery, the jury could have found that the statement, in the letter written by Malaguti to the Old Colony Trust Company, dated June 5, 1920, as follows: "Beg to say that the 90 day draft dated Feb. 29, 1920 for $23,590.55 was made by the writer when he was in Italy under certain conditions"-was true; and also, from the expert testimony offered by the plaintiff, that the note was in Malaguti's handwriting. It is plain upon the foregoing and all the evidence that he could have been found to have made the note, notwithstanding his testimony to the contrary. told Hood, Miss Wells and Taplan (who had become a stockholder in 1920) "all he had done over there; * * * that upon his return he reported to the directors about the Italian business that the company was interested in," and "told his partners about the talk with Alinovi." [3, 4] Miss Wells testified that she "knew about everything that went on"; that she understood there were goods that Alinovi did not take but that she had no definite knowledge of it. Hood testified that he knew about Malaguti's trip to Italy on business for the company and when he came back he told him what he had done. This witness also testified that he protested to Malaguti "in regard to his signature upon the note." The jury could have disregarded what he said respecting the note and found upon his testimony and other evidence and the reasonable inferences to be drawn therefrom that the execution and delivery of the note by Malaguti were ratified by the managing officers of the company as well as by its stockholders and directors. It was not necessary that such ratification should be by a formal vote. It [2] The undisputed evidence showed that was sufficient if the corporation, acting Malaguti was the president of the defendant through its proper officers, knew that the note company in February, 1920, and had held had been given in settlement of Alinovi's that office for several years previously; that claim against it, and assented thereto. he and one Hood and one Taplan owned all Whether there was a ratification by the corthe stock of the corporation at that time ex-poration was a question of fact for the jury. cept eight shares held by Barbara A. Wells, Nims v. Mount Hermon Boys' School, 160 who was the bookkeeper and clerk of the Mass. 177, 182, 35 N. E. 776, 22 L. R. A. 364, corporation; that Malaguti was also assist- 39 Am. St. Rep. 467. ant treasurer at that time, and that the board of directors consisted of himself, Hood and Miss Wells. The by-laws provided that the business of the corporation should be managed and conducted by the president, board of directors, the clerk and the treasurer; that the treasurer should sign all instruments in writing, including notes for the payment of money; that the assistant treasurer should have power to perform the duties of the treasurer when the latter was absent or unable to act. The question whether Malaguti had original authority to execute and deliver the note need not be considered, as it is plain there was evidence from which it could have been found that he made it and that his act was ratified by the corporation. There was evidence that, after the sales hereínbefore referred to had been made by the defendant and Alinovi had rejected a portion of the leather, Hood, a stockholder and director, wrote to Alinovi that he would be credited for all merchandise he was not able to use; that Malaguti was the only one in the company who spoke Italian; that letters written by him to Alinovi bore the heading "Export Department Charles D. Malaguti"; that when it was necessary for any one to go to Italy to represent the defendant, he went; that when he came back in March, 1920, he Alinovi, having paid the draft in full, was entitled to a rebate of so much as represented goods that he did not order; and, since Malaguti had promised to reimburse him for that amount, the giving of the note in question is susceptible of the construction that it was in substance merely paying what, as between Alinovi and the defendant, was due, and that it was the defendant's own debt which was thereby extinguished. [5] It was not contended that the act of the president was fraudulent or that he profited personally by the transaction. What was done was for the manifest benefit of the company, and resulted in an extension of time for the payment of what could have been found to be a debt of the corporation. The jury could have found that Malaguti, with the knowledge and acquiescence of the directors, went to Italy in January, 1920, for the purpose of securing business for the defendant and to settle some affairs there, one of them being the transaction between the defendant and Alinovi; that the note in suit was given to Alinovi in settlement of his claim against the defendant; and that all the directors and stockholders (independently of Malaguti who were the same persons, with one exception) afterwards, with full knowledge that the note had been given, approved and ratified Malaguti's act. If the (148 N.E.) jury so found the corporation could be found | against an innocent purchaser for value, beto have confirmed and adopted the settle- fore maturity, and without notice. See ment. Ratification may be inferred from cor- Towne v. Rice, 122 Mass. 67, 71; Walling v. porate acts.which may be presumed to have Cushman, supra. been performed under corporate authority. Produce Exchange Trust Co. v. Bieberbach, 176 Mass. 577, 58 N. E. 162; Beacon Trust Co. v. Souther, 183 Mass. 413, 67 N. E. 345; North Anson Lumber Co. v. Smith, 209 Mass. 333, 338, 95 N. E. 838. [13, 14] It is plain from what has been said that the defendant's motion for a directed verdict was rightly denied. Request thirteen, relating to the burden of proof, was given in substance. Requests fourteen and fifteen were rightly denied as they excluded liability on the ground of ratification. Requests four, seven, twelve, sixteen, seven [6, 7] The jury could have found upon the testimony of Alinovi that the consideration for the note was its acceptance by him in teen and eighteen were covered by the repayment of the amount which he had over-charge. paid the defendant; that would be a sufficient consideration for the note. Ives v. Farmers' Bank, 2 Allen, 236, 241; National Revere Bank v. Morse, 163 Mass. 383, 40 N. E. 180. Absence of consideration would not be a defense as against the plaintiff if, as the jury could have found, it was a holder in due course. G. L. c. 107, § 74. It follows that the plaintiff's second request was rightly denied. [15] The exceptions to the admission of evidence will be considered in the order in which they have been argued on the defendant's brief. The exception to the admission of the question in direct examination of the witness Hood, respecting a conversation had by him with Malaguti, on the ground that it was leading, cannot be sustained. It was within the discretion of the judge to allow leading questions to be put in direct examination. Gray v. Kelley, 190 Mass. 184, 187, 76 N. E. 724. [8-12] The contention of the defendant that as the note was dated on Sunday it was void cannot be sustained. The fact that a note is [16-18] The deposition of Alinovi was takmade and dated on a Sunday does not of it- en by the defendant and consisted of interself render it invalid. It takes effect from its rogatories and cross-interrogatories and the delivery, and unless the evidence shows that defendant's answers. The seventh cross-init was delivered on a Sunday, it is not inval- terrogatory was objected to by the plaintiff id. Hill v. Dunham, 7 Gray, 543. The only evi- on the ground that it was predicated on an dence of when the note was delivered is affirmative answer to the defendant's direct found in the testimony of Alinovi, who said interrogatory seven, and that the deponent that it was delivered to him at Parma, Italy, had not answered that interrogatory in the by the defendant's Italian agents "in the affirmative. The defendant was not harmfirst of March, 1920." This, if believed, war-ed by the admission of the answer, as the deranted the jury in finding that it was not de- ponent had previously given substantially livered on Sunday, February 29, 1920. In the absence of evidence that it was delivered on a Sunday in March, it will be presumed in law that it was delivered on a secular day and was not a void instrument. Walling v. Cushman, 238 Mass. 62, 66, 130 N. E. 175. The instructions upon this branch of the case were accurate and sufficient. The defendant's first, eighth, ninth, eleventh, twenty-first and twenty-second requests could not rightly have been given. The maker of a note is ordinarily deemed to be bound in accordance with the laws of the place where it is payable. Cherry v. Sprague, 187 Mass. 113, 72 N. E. 456, 67 L. R. A. 33, 105 Am. St. Rep. 381; Walling v. Cushman, supra. In the case at bar it is immaterial, so far as the validity of the note is concerned, whether it is to be construed by the laws of Italy or by those of this commonwealth, as there is no evidence to show that it was invalid in either jurisdiction. Accordingly the defendant's sixth, seventh and tenth requests were rightly denied. As there is no evidence that the note was delivered on Sunday, we need not consider whether, if it had been delivered on that day, it would be invalid in this commonwealth as the same testimony in answer to direct interrogatories. The exception to cross-interrogatories eight and nine cannot be sustained. The exception to cross-interrogatory seventeen, on the ground that delivery of the note in suit was assumed but had not been proved, cannot be sustained, as the deponent had previously testified without objection that the defendant's Italian representatives had delivered the note to him in March, 1920. The admission of a letter written by Hood to Alinovi, if incompetent, does not seem to have been prejudicial to the defendant. The admission of the depositions of Praecco and Lion was not erroneous. We cannot say that their relations with the plaintiff bank were not such as to enable them to testify by deposition respecting the matters about which they were interrogated. [19] The defendant excepted to certain parts of the charge. The judge referred to the testimony of Alinovi respecting the rejection of certain portions of the leather and that the note was given to repay the amount which Alinovi had paid. He then said that the fair purport of Alinovi's testimony was that the matter was adjusted by the giving of the note. This statement was made in |