« ForrigeFortsett »
(148 N.E.) “(22) If the date on the instrument was fill “(h) Was it shipped in accordance with the ed in at some subsequent time to the making requirements of the contract? and the date thus filled in was Sunday and the “(i) Did you accept it upon arrival? instrument sued on was payable in Boston, .“(j) Did you refuse it upon arrival or any Mass., then all holders in the instrument are other time, and, if so, when? presumed to have taken it in contemplation of “(k) Did you accept it at any time, and, if the Massachusetts law with respect thereto and so, when? full knowledge that under Massachusetts law “(1) Did you insist on any act on the part the instrument was illegal and void."
of the defendant as a condition of your ac
cepting delivery of the said goods? The plaintiff read cross-interrogatory No. "(m) If so, what was the condition, and 7 of Alinovi's deposition as follows:
when and how was it performed?" "(7) If your answer to the defendant's inter M. C. Taylor, of Boston, for plaintiff. rogatory No. 7 is in the affirmative, state fully F. W. Mansfield and E. R. Mansfield, both the terms of said contract including when and of Boston, for defendant. 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
CROSBY, J. This is an action on a prommade."
issory note, brought by an indorsee against
the defendant. The note was written in the The defendant objected to the admission Italian language. According to the transof this interrogatory on the ground that it lated copy set forth in the record, it is dated was predicated on an affirmative answer to February 29, 1920, payable to Joseph Alinovi, the defendant's direct interrogatory No. 7 at the Prudential Trust Company in Boston, and that the deponent had not answered that and purports to be signed “Columbia Counter interrogatory in the affirmative. Direct in- Company, Charles D. Malaguti, President.” terrogatory No. 7 and its answer are as fol. It was indorsed by the payee to the order of lows:
the plaintiff. At the trial it was agreed that “(7) Did you at some time in the years 1919 February 29, 1920, was Sunday. or 1920, or at any other time, buy from the The defendant denied making the instruColumbia Counter Company certain leather ment and contended that it was a forgery ; invoiced to you for $23,628.51, upon which it also denied that Malaguti had any authorthere were freight charges of $194.61, insur- ity to sign it for the defendant; that being ance charges of $418.91, making a total bill to dated on Sunday, it was void ; that it was you of $24,242.03?
"Answer: About 1919 I bought leather from without consideration; and that the plainthe Columbia Counter Company, amounting to tiff was not a purchaser for value. The case a total of about $100,000, in two invoices, nei- was tried with a second action brought by ther of which was for the amount of $24,- the plaintiff against Malaguti personally, 242.03."
wherein it was alleged that he was not au
thorized to make the note and damages were The court admitted the answer subject to sought for such alleged unauthorized act. the defendant's exception, the witness depos- The jury found for the plaintiff in the first ing in answer thereto that the merchandise case and for the defendant in the second. was to be delivered to him at Parma, no date
At the date of the note and previously being fixed for delivery, and payment was to thereto Alinovi, the payee, was a manufacbe made by giving the draft for 30 days aft- turer of shoes in Parma, Italy. The defender arrival of goods in Italy, payment to be ant is a Massachusetts corporation dealing made at Parma in dollars. The court also in shoe supplies, shoe counters and upper admitted, subject to the defendant's excep- leather, with a place of business in Boston. tion, based on the same objection, cross-in- There was evidence tending to show that in terrogatories 8 and 9, which read as follows: August and September, 1919, the defendant
"(8) Was merchandise purporting to be that sold and shipped to Alinovi forty-one cases of called for by the contract referred to in your leather, amounting in all to about $100,000; answer to the preceding interrogatory tendered that one of these shipments was invoiced at to you by the defendant or any one acting on $17,566.20, and another at $6,024.35, the two its behalf? “(9) If your answer to the preceding inter- together $23,590.55, being the exact amount
of the note in suit; that in the shipments there rogatory is in the affirmative, state: “(a) When it was shipped ?
were certain goods not ordered; that Alinovi "(b) From what port it was shipped?
accepted those that conformed to his order, "(c) To what port it was shipped?
rejected the rest, and notified the defendant "(d) How it was consigned?
that the latter were held in his storehouse "(e) Did you at any time examine it, and subject to its order. There was further eviwhen and where?
“(f) Was it in fact a compliance with the dence to show that, to get the goods ordered, terms of the contract, and, if not, in what re
it was necessary for Alinovi to pay a draft spect did it fail to comply?
for the entire lot, which he did. He testified "(g) Did it arrive at the place where it was by deposition that he requested Malaguti for to be delivered to you at the time stated in the payment of the leather which was not ordercontract, and, if not, how late was it?
ed; that the latter replied he did not have
the money but would send it through the de- , told Hood, Miss Wells and Taplan (who had fendant's representatives in Milan, Antonioli become a stockholder in 1920) “all he had and De Pol, by draft for the amount cover- done over there;
that upon his reing the rejected leather; that the instrument turn he reported to the directors about the in question, which seems by the parties to Italian business that the company was inhave been considered as a draft, was deliv- terested in,” and “told his partners about ered to Alinovi by De Pol in March, 1920; the talk with Alinovi.” that he indorsed it (it being agreed that it is [3, 4] Miss Wells testified that she “knew a promissory note in form) and delivered it about everything that went on"; that she to the plaintiff at Parma; that it was dis- understood there were goods that Alinovi did counted by the plaintiff and the proceeds not take but that she had no definite knowlwere credited to Alinovi's account.
edge of it. Hood testified that he knew about  Upon the question whether the note Malaguti's trip to Italy on business for the was a forgery, the jury could have found that company and when he came back he told him the statement, in the letter written by Mal- what he had done. This witness also testiaguti to the Old Colony Trust Company, dat-fied that he protested to Malaguti “in regard ed June 5, 1920, as follows: "Beg to say that to his signature upon the note.” The jury the 90 day draft dated Feb. 29, 1920 for $23,- could have disregarded what he said respect590.55 was made by the writer when he was ing the note and found upon his testimony in Italy under certain conditions"—was true; and other evidence and the reasonable inand also, from the expert testimony offered ferences to be drawn therefrom that the exby the plaintiff, that the note was in Mala- ecution and delivery of the note by Malaguti guti's handwriting. It is plain upon the fore-were ratified by the managing officers of the going and all the evidence that he could have company as well as by its stockholders and been found to have made the note, notwith- directors. It was not necessary that such standing his testimony to the contrary. ratification should be by a formal vote. It
 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 Alinovi, having paid the draft in full, was board of directors consisted of himself, Hood entitled to a rebate of so much as represent. and Miss Wells. The by-laws provided that ed goods that he did not order; and, since the business of the corporation should be Malaguti had promised to reimburse him for managed and conducted by the president, that amount, the giving of the note in quesboard of directors, the clerk and the treas- tion is susceptible of the construction that urer; that the treasurer should sign all in- it was in substance merely paying what, as struments in writing, including notes for the between Alinovi and the defendant, was due, payment of money; that the assistant treas- and that it was the defendant's own debt urer should have power to perform the du- which was thereby extinguished. ties of the treasurer when the latter was ab  It was not contended that the act of sent or unable to act.
the president was fraudulent or that he prof. The question whether Malaguti had origi- ited personally by the transaction. What nal authority to execute and deliver the note was done was for the manifest benefit of the need not be considered, as it is plain there company, and resulted in an extension of was evidence from which it could have been time for the payment of what could have found that he made it and that his act was been found to be a debt of the corporation. ratified by the corporation. There was evi. The jury could have found that Malaguti, dence that, after the sales hereinbefore re- with the knowledge and acquiescence of the ferred to had been made by the defendant directors, went to Italy in January, 1920, for and Alinovi had rejected a portion of the the purpose of securing business for the deleather, Hood, a stockholder and director, fendant and to settle some affairs there, one wrote to Alinovi that he would be credited of them being the transaction between the for all merchandise he was not able to use ; defendant and Alinovi; that the note in suit that Malaguti was the only one in the com was given to Alinovi in settlement of his pany who spoke Italian; that letters writ- claim against the defendant; and that all ten by him to Alinovi bore the heading “Ex- the directors and stockholders (independentport Department Charles D. Malaguti"; that ly of Malaguti who were the same persons, when it was necessary for any one to go to with one exception) afterwards, with full Italy to represent the defendant, he went; knowledge that the note had been given, apthat when he came back in March, 1920, he proved 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. (13, 14] It is plain from what has been Produce Exchange Trust Co. v. Bieberbach, said that the defendant's motion for a direct176 Mass. 577, 58 N. E. 162; Beacon Trust ed verdict was rightly denied. Request thirCo. v. Souther, 183 Mass. 413, 67 N. E. 315; teen, relating to the burden of proof, was North Anson Lumber Co. v. Smith, 209 Mass. given in substance. Requests fourteen and 333, 338, 95 N. E. 838.
fifteen were rightly denied as they excluded [6, 7] The jury could have found upon the liability on the ground of ratification. Retestimony of Alinovi that the consideration quests four, seven, twelve, sixteen, sevenfor 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 suf  The exceptions to the admission of ficient consideration for the note. Ives v. evidence will be considered in the order in Farmers' Bank, 2 Allen, 236, 241; National which they have been argued on the defendRevere Bank v. Morse, 163 Mass. 383, 40 N. ant's brief. The exception to the admission E. 180. Absence of consideration would not of the question in direct examination of the be a defense as against the plaintiff if, as witness Hood, respecting a conversation the jury could have found, it was a holder in had by him with Malaguti, on the ground due course. G. I, c. 107, § 74. It follows that it was leading, cannot be sustained. It that the plaintiff's second request was right- was within the discretion of the judge to ally denied.
low leading questions to be put in direct ex[8-12] The contention of the defendant that amination. Gray v. Kelley, 190 Mass. 184, as the note was dated on Sunday it was void 187, 76 N. E. 724. 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 same testimony in answer to direct inthe absence of evidence that it was delivered terrogatories. The exception to cross-interon a Sunday in March, it will be presumed in rogatories eight and nine cannot be sustainlaw that it was delivered on a secular day ed. The exception to 'cross-interrogatory and was not a void instrument. Walling v. seventeen, on the ground that delivery of the Cushman, 238 Mass. 62, 66, 130 N. E. 175. note in suit was assumed but had not been The instructions upon this branch of the proved, cannot be sustained, as the deponent case were accurate and sufficient. The de- had previously testified without objection fendant's first, eighth, ninth, eleventh, twen- that the defendant's Italian representatives ty-first and twenty-second requests could not had delivered the note to him in March, 1920. rightly have been given. The maker of a The admission of a letter written by Hood note is ordinarily deemed to be bound in ac- to Alinovi, if incompetent, does not seem to cordance with the laws of the place where it have been prejudicial to the defendant. The is payable. Cherry v. Sprague, 187 Mass. admission of the depositions of Praecco and 113, 72 N. E. 456, 67 L. R. A. 33, 105 Am. Lion was not erroneous. We cannot say that St. Rep. 381; Walling v. Cushman, supra. their relations with the plaintiff bank were In the case at bar it is immaterial, so far not such as to enable them to testify by deas the validity of the note is concerned, position respecting the matters about which whether it is to be construed by the laws of they were interrogated. Italy or by those of this commonwealth, as  The defendant excepted to certain there is no evidence to show that it was in- parts of the charge. The judge referred to valid in either jurisdiction. Accordingly the the testimony of Alinovi respecting the redefendant's sixth, seventh and tenth requests jection of certain portions of the leather and were rightly denied.
that the note was given to repay the amount As there is no evidence that the note was which Alinovi had paid. He then said that delivered on Sunday, we need not consider the fair purport of Alinovi's testimony was whether, if it had been delivered on that day, that the matter was adjusted by the giving It would be invalid in this commonwealth as of the note. This statement was made in
connection with that part of the instructions 3. Witnesses 376, 414(2) - Statement of which related to the genuineness of the note. witness corroborating his testimony properly. The jury were further told in this connec
received. tion that the court did not assume that the
Where defendant, by cross-examination, note was genuine as that was purely a ques- sought to prove that commonwealth's witness tion of fact for them to pass upon. In this had testified under influence of bias or in situainstance and throughout his instructions the chief was false or of recent fabrication, there
tion of moral duress, and that his testimony in judge was careful to make it plain that the was no error in receiving in evidence his sworn jury were the sole judges of the facts. The statement, made shortly after his arreston exception to this part of the charge cannot same charge, which was dismissed for want of be sustained.
prosecution. [20, 21] The refusal to allow the defend- 4. Criminal law aw 11701/2(2)—Answer of wit. ant's motion to amend its answer, denying
ness to question as to whether it had not octhe corporate existence of the defendant cor curred to her that the woman had had misporation, rested in the sound discretion of carriage held without prejudice. the court. Its denial does not seem to have In prosecution for procuring miscarriage, affected the substantial rights of the defend- negative answer of witness, on cross-examinaant, or subjected it to a double liability on tion by prosecuting officer, to question wheththe note in suit. The other motions not ar
er it had not occurred to her that the woman
might have had a miscarriage or something, gued are treated as waived.
held not prejudicial to defendant. The instructions upon ratification were in accord with sound principles and in conform- 5. Witnesses Om414(1)-Evidence contradict. ity with earlier decisions of the court and ing testimony of commonwealth's witness held that issue has been previously dealt with
admissible to rebut inference that latter's herein. The contentions of the defendant
change of testimony was echo from district
attorney's office. that the instructions were insufficient and erroneous, and that the judge charged upon which contradicted testimony of
Evidence of witness, a prosecuting officer,
commonthe facts, are without merit. A careful read- wealth's witness as to what was said by such ing of the instructions shows that the court officer at recess, was properly admitted to rebut was fair in its allusions to the testimony, inference that change of testimony by commonand that its statement of the principles of wealth's witness was but echo from district atlaw involved and of their application to the torney's office. evidence was full and accurate.
6. Criminal law Ou 429(2)-Records of district We have discussed all exceptions which
court in abortion charge held inadmissible. require special consideration.
In prosecution for using instruments on Exceptions overruled.
woman with intent to produce miscarriage, records of district court were inadmissible in proof of contention of defendants that they were treated differently, although complained of for the same thing.
7. Witnesses 377-Records of district court COMMONWEALTH V. NASON et al.
in abortion charge held inadmissible as affect.
ing credibility of witness. (Supreme Judicial Court of Massachusetts. Worcester. May 22, 1925.)
In prosecution for using instruments with intent to produce miscarriage, records of dis
trict court were inadmissible and properly er1. Criminal law 93 District court held
cluded as affecting testimony of witness, against without jurisdiction of offense of abortion.
whom charge was dismissed, that he had no As offense of using instruments on woman agreement or understanding with commonwith intent to produce miscarriage is punisha- wealth. ble by imprisonment for more than 5 years, district court, in view of G. L. c. 218, § 26, was 8. Abortion l-immaterial that fætus had without final jurisdiction to make finding binding lost vitality and never could have developed either commonwealth or defendants, but had into living child. power only to determine whether there was As offense created by G. L. c. 272, $ 19, is probable cause for charging the person with complete , when defendant unlawfully uses inthe crime, and, under section 30, if he thought strument on body of woman with intent to prothere was, to bind him over to superior court. duce miscarriage, it is immaterial that fætus, 2. Indictment and information Cow 137 (1) - vitality so that it never could have matured into
previous to act complained of, had lost its Pendency of hearing to determine whether
a living child. porson should be bound over to superior court not ground for quashing indictment.
9. Criminal law Cw829(4)-Request that if, at Pendency of hearing in district court, to time woman came to defendants, fætus was determine whether there is probable cause for
dead, defendants' removal thereof would not charging a person with offense and for binding be offense rightly refused. him over to superior court, is not ground for In view of instruction fully protecting rights quashing indictment pending examination. of defendants, it was proper to refuse their re
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
(148 N.E.) quest that if, at time the woman came to them, Cush. 279; Commonwealth v. Cody, 165 Mass. the fætus she was carrying had become dead, 133, 136, 42 N. E. 575. The cases cited and they could not be convicted if what they did relied on by the defendants rest upon statute for her was merely to try and remove the dead mandates of-the state of New York, which fætus to relieve her.
find no counterpart in the statutes of this
commonwealth. It follows that the defendExceptions from Superior Court, Worces- ants suffered no legal harm in being compellter County; W. P. Hall, Judge.
ed to submit to trial before a decision was Howard N. Nason and another were con- / had upon the complaint in the district court. victed of using a rubber tube on the body of Klous v. Judges Municipal Court of the City a woman, with intent to procure a miscar- of Boston (Mass.) 146 N. E. 783. riage, and they except. Exceptions over At the trial the commonwealth introduced ruled.
testimony tending to show that in May, 1924,
one Elizabeth M. Bruneault became pregnant C. B. Rugg, Asst. Dist. Atty., and E. G.
as a result of sexual intercourse with one Norman, both of Worcester, for the Common- | Louis P. Duffy; that in September Duffy inwealth. H. W. Blake and A. T. Bozzdlo, both of terviewed both the male and female defend
ants at their home, and, as a result of negoGardner, for defendants.
tiations taking place at such interviews,
brought Miss Bruneault to the defendants' PIERÇE, J. The defendants, husband and house in the evening shortly before Septemwife, were jointly indicted under G. L. c. ber 12; that after she came there, the de272, $ 19, for unlawfully using a rubber tube fendant Julia A. Nason, with the sanction upon the body of Elizabeth M. Bruneault, and approval of the defendant Howard N. with intent to procure her miscarriage, and Nason, inserted a rubber tube into the body were arrested on warrants issued under said of said Bruneault and performed certain othindictment. The male defendant obtained
er operations upon her, as a result of which bail, but the defendant Julia A. Nason did
a few days later she was delivered of a child not and had not when, on October 28, 1924, about three months and two weeks advanced both defendants being in court, the prosecut
from conception. ing officer moved a jury be impaneled to try
 Louis P. Duffy was a witness for the them for the offense charged. Before any ac
commonwealth and it appeared "that upon tion on this motion the defendant Julia A. the 6th day of October, 1924, he was escorted Nason presented a petition for a habeas cor- from his home to the town hall by the chief pus, alleging in substance that she was ille- of police of the town of Winchendon and gally restrained of her liberty under the war
there interviewed at length by the said chief rant issued upon said indictment, because and a member of the state police as a result she had already been complained of and held of which he signed and made oath to a writto bail for the same offense in the Winchen- ten statement purporting to set forth the don district court and that the proceedings in facts of which he had knowledge in the case. that court had never been dismissed or other. Upon the same afternoon complaints were wișe disposed of in her presence or with her filed by said chief of police in the district consent. The presiding judge granted a writ
court of Winchendon against Julia A. Nason, of habeas corpus returnable to the Supreme Howard N. Nason and Louis P. Duffy, and Judicial Court in Boston on October 31, 1924, the case against witness Duffy was upon the and, subject to the exception of the defend
23d day of October, 1924, dismissed for want ant, ordered the trial to proceed. [1, 2] The offense charged being punishable
of prosecution.” In cross-examination Duffy
was asked whether he had talked with any in the state prison, for more than five years, the district court was without final jurisdic- one about the case before giving his testition to make a finding of guilt or innocence mony; he answered that he had not. The which should bind the commonwealth or the cross-examination was concluded just before defendants. G. L. c. 218, § 26. In such a
the noon recess. After court reconvened for case the power of the district court is to de- the afternoon session he was recalled to the termine whether or not there is probable stand by the commonwealth and then stated, cause for charging the person with the crime in response to the question of the prosecutand if he thinks there is to bind such person ing officer, that he had talked with others over for trial in the Superior Court. G. L. before he gave his testimony. Duffy in crossC. 218, $ 30. The pendency of such a hearing examination then said in substance that he in the district court is not a ground for did not understand in the morning that he quashing an indictment pending the examina- had been asked whether he had ever talked tion, any more than the pendency of an indict- with any one about the case; that he had ment is a good plea in abatement to another talked with one McCarthy and understood indictment or another complaint for the same that he had been asked that, but he did not cause; and this is especially true where, as know what it meant; that during the noon here, there can be no final judgment in the recess he had seen his statement and had it
Commonwealth v. Drew, 3 explained to him and had been told that he