Sidebilder
PDF
ePub

plaintiff having offered no evidence that the signature of Goodowsky, the payee, who appeared on the back of the note to be the last indorser, was genuine, he had failed to show title in himself. Whitmen v. Fournier, 228 Mass. 93, 117 N. E. 3; Levison v. Lavalle, 243 Mass. 47, 49, 136 N. E. 645; G. L. c. 231, § 29; Lowell v. Bickford, 201 Mass. 543, 88 N. E. 1. The defendants' motion for a directed verdict should have been granted. Exceptions sustained.

that when Mary F. M. Forsyth, the adopted | denied the signature of all parties, and, the child of Margaret J. Manning, filed on April 9, 1923, her petition to be appointed trustee to succeed Margaret J. Manning, and received the appointment, the petitioner had a vested interest in the property held in trust, and was entitled to notice of the petition by publication or personal service, which never was given, and to the granting of which he never has assented. G. L. c. 203, 5; Shaw v. Paine, 12 Allen, 293, 295; Bradstreet v. Butterfield, 129 Mass. 339, 342; Dexter v. Cotting, 149 Mass. 92, 96, 21 N. E. 230. While the decree recites that all persons interested assented, and the assent of the adopted children of Margaret J. Manning was inoperative, it cannot be collaterally attacked for irregularity. McKim v. Doane, 137 Mass. 195; McCarron v. New York Central Railroad, 239 Mass. 64, 69, 131 N. E. 478. But the court of probate could not deprive the petitioner of his right to be heard, and his petition for revocation of the decree, which the court properly granted was the appropriate remedy. Waters v. Stickney, 12 Allen, 15, 90 Am. Dec. 122; Neafsey v. Chin

cholo, 225 Mass. 12, 113 N. E. 651. Decree affirmed.

CANTON V. SHAFFER et al. (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 28, 1925.)

Bills and notes 523-Title not shown in absence of evidence of genuineness of signature of payee as indorser.

In action on note indorsed before delivery by one of parties defendant, where answer denied signature of all parties, and plaintiff, an assignee, claiming rights of payee, under G. L. c. 231, § 29, offered no evidence that signature of payee, whose name appeared as last indorser, was genuine, he showed no title in himself. Exceptions from Superior Court, Suffolk County; Frederick J. MacLeod, Judge.

PRIORELLI et al. v. GUIDI et al. (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 27, 1925.)

Husband and wife 235 (2)—Genuineness of signature held a jury question and plaintiffs not bound by testimony of adverse party.

The introduction in evidence of notes purporting to bear signatures of husband and wife, husband's testimony that he wrote wife's name ture written on witness stand, held not to rewithout her authority, and her genuine signa

quire direction of verdict for defendant wife; the genuineness of the signature being for the jury, expert evidence not being indispensable, and plaintiffs not being bound by testimony of defendants.

Exceptions from Superior Court, Suffolk County; Morton, Judge.

Action of contract by Romeo Priorelli and others against Ubaldo Guidi and Esterina Guidi. On exceptions of Esterina Guidi to refusal of directed verdict in her favor. Exceptions overruled.

John E. Crowley, of Boston, for plaintiffs. Frank P. Fralli, of Boston, for defendants.

PER CURIAM. This is an action of contract on two promissory notes purporting to be signed by the two defendants, who are husband and wife. One of the plaintiffs testified that he lent to the husband two sums of $1,000 each; that he declined to take promissory notes signed by the husband alone, but required the signature of the wife; that the husband after signing the notes in his presence took the notes, which then had Samuel Brenner, of Boston, for plain- only the husband's signature on them, and

Action of contract by James A. Canton, as holder of promissory note, against Philip Shaffer and others. On defendants' exceptions to denial of directed verdict. Exceptions sustained.

tiff. shortly thereafter presented them to the Harry Bergson, of Boston, for defendants. plaintiff in the form in which they were of

BRALEY, J. The defendant Los Angeles Company made a promissory note payable to the order of H. Goodowsky, which before delivery was endorsed by the defendant Shaffer. The plaintiff, while a holder of the note was not a holder in due course, but contended that as an assignee he had all the rights of the payee. The answer, however,

fered in court, with the statement that the signature of the wife had been put upon the notes by her; and that thereupon the money was advanced. The plaintiffs called both defendants as witnesses. The husband testified that he signed his wife's name to the note without any authority from her and without attempting to disguise his handwriting or imitate that of his wife. The wife

(146 N.E.)

testified that the writing of her name on the notes was not her signature and that she did not authorize her husband to write her

name. While she was on the witness stand she wrote her signature on a piece of paper, which was received in evidence. No oth

er evidence was introduced.

The only exception is to the refusal by the trial judge to direct a verdict in favor of the wife. There was no error of law in this denial. The notes, together with the genuine signature of the defendant wife made in the presence of the jury, were enough to warrant a finding in favor of the plaintiff. It is not necessary that any expert evidence be introduced. The jury themselves on comparison of the genuine signature with the signatures on the notes might use their own judgment. Whalen v. Rosnosky, 195 Mass. 545, 81 N. E. 282, 122 Am. St. Rep. 271; Noyes v. Noyes, 224 Mass. 125, 130, 112 N. E. 850; Levi v. Rubin, 241 Mass. 40, 134 N. E. 234. The plaintiffs were not bound by the testimony of the defendants simply because

they called them as witnesses. Exceptions overruled.

WHITNEY v. PORTER.

(Supreme Judicial Court of Massachusetts. Middlesex. Feb. 28, 1925.)

Exceptions from Superior Court, Middlesex County; John A. Aiken, Judge.

Writ of review by Arthur H. Whitney to review judgment recovered against him by Rose M. Porter in action of tort. On plaintiff's exception to denial of motion for directed verdict, to admission of evidence, and to denial of request for rulings. Exceptions

sustained.

C. F. Eldredge, of Boston, and P. F. Ryan, for plaintiff.

W. J. Barry, of Boston, for defendant.

BRALEY, J. [1] The defendant Porter on January 3, 1916, having recovered final judgment for damages assessed by the court in an action of tort against the plaintiff in review who never appeared but was defaulted, he petitioned within one year thereafter for a writ of review which was granted, and the execution was stayed or superseded. A review under our law is said to be equivalent to a new trial after judgment, and everything is open upon the review as it would have been in the original action. But the judgment is not set aside. It stands until the judgment in review which may affirm, reverse, or modify the former judgment in whole or in part, or make such other disposition of the case as may be necessary to secure the just and equal rights of all parties. Safford v. Knight, 117 Mass. 281, 284; Lynn Gas Co. V. Creditors' National Clearing House, 235 Mass. 114, 118, 126 N. E. 364; G.

1. Review-Writ of review equivalent to L. c. 250, § 22. new trial, except judgment stands.

Under G. L. c. 250, § 22, writ of review is equivalent to new trial after judgment, except that judgment is not set aside, but stands until

affirmed, reversed, or modified.

[2] If issue had been joined in the original suit, the case upon review could be tried upon the original pleadings or on any amendment of the original pleadings. G. L. c. 250, § 31; Fuller v. Storer, 111 Mass. 281,

2. Review 22-Case on review tried on 282, 283. But section 32 provides, that where pleadings.

Under G. L. c. 250, §§ 31, 32, case on review may be tried on original pleadings or amendments thereto, though, if there has been no joinder of issues, parties must plead or answer on review, as they might have done in original action.

3. Review 22-On writ of review amendment changing action from tort to contract is improper.

On writ of review to review default judgment taken against plaintiff in review in action of tort, it was error under G. L. c. 250, §§ 31, 32, to permit defendant in review to strike or amend original declaration in manner to substitute declaration on account annexed.

4. Appeal and error 66-Bill of exception taken by plaintiff in review to rulings of court treated as interlocutory, in absence of showing whether trial proceeded to final conclusion.

Bill of exception taken by plaintiff in review to rulings of court treated as interlocutory, in absence of showing whether trial proceeded to final conclusion.

judgment in the original action, as in the case at bar, is rendered without a joinder of issue, the parties shall plead or answer upon the review in like manner as they might have done in the original action, and the case shall be tried upon any issue of fact or law joined upon such pleadings or answer.

The judgment was founded on alleged actionable misrepresentations, as stated in the declaration, of Whitney and other persons joined as defendants against whom the plaintiff before judgment had discontinued. Good v. Lehan, 8 Cush. 299, 300. The defendant in review could be permitted so to amend her declaration as to state her claim in tort more fully or accurately as she might have done in the original action. But the petition for review as well as the writ of review related solely to a judgment in an action of tort. There was no judgment in an action of contract in existence, and the allowance of the amendment changing the action from tort to contract transformed the proceedings to a review of a judgment which could not law

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

fully have been entered.

The amendments | 3. Banks and banking 315(3)—Maker of

to the pleadings which may be allowed under section 31, and the pleadings permissible under section 32, are the formal allegations by the parties of their respective demands, claims and defences, and do not embrace the substitution by way of amendment of an action of contract for an action of tort as stated in the writ. The allowance of the amendment making such change was wrong.

[3] If the cause of action could not be altered, the amendment striking out the origi. nal declaration and substituting a declaration on an account annexed for a commission in procuring a construction mortgage loan also was improperly allowed.

Far

[4] It does not specifically appear whether after these rulings to which the plaintiff in review excepted, the trial proceeded to a final conclusion, and accordingly we treat this bill of exceptions as interlocutory. ris v. St. Paul's Baptist Church, 216 Mass. 570, 104 N. E. 639. The case while the first bill of exceptions was pending came on for further trial before another judge of the court, and the defendant in review obtained a verdict on the amended writ and pleadings. It is however unnecessary to review the denial of the motion of the plaintiff in review for a directed verdict, or his exceptions to the admission of evidence, or to the denial of various requests for rulings, or to the instructions. The presiding judge undoubtedly was bound by the record as it stood under the rulings previously considered, which had not been reversed. But these rulings having been unsound, the second trial resulted in a mistrial, and the general entry must be:

Exceptions sustained.

COSMOPOLITAN TRUST CO. v.

WASSERMAN.

(Supreme Judicial Court of Massachusetts. Suffolk. Feb. 28, 1925.)

note payable insolvent trust company not entitled to set-off deposit in his name as trustee.

In action on note by insolvent trust company in course of liquidation, defendant held not entitled to set-off amount of deposit in his name as trustee.

4. Banks and banking 317 - Defendant in action on note by insolvent bank not entitled to set-off amount paid it for capital stock because certificate not filed.

In action on note by insolvent trust company in course of liquidation, defendant held not entitled to set-off amount paid for shares of capital stock of company when legally or ganized, because certificate of increase of capital stock was not filed in view of G. L. c. 156, §§ 41, 43, and chapter 172, § 18. 5. Banks and banking 317-Equitable setoff against claim of insolvent bank not per. missible when giving priority over others.

Under G. L. c. 231, § 31, defendant may not have equitable set-off of claims which could not be set-off at law against claim of insolvent trust company on a note, where to do so would be to give such depositor priority over other creditors entitled to share equally in any re

covery from him.

Exceptions from Superior Court, Suffolk County; Lawton, Judge.

Action of contract by the Cosmopolitan Trust Company, by Joseph C. Allen, Commissioner of Banks, against Jacob Wasserman to recover on promissory note, wherein defendant filed declaration in set-off. On defendant's exceptions to court's rulings, findings, and refusals to rule. Exceptions overruled.

S. M. Child, of Boston, for plaintiff. J. Wasserman, of Boston (M. M. Horblit, of Boston, with him), for defendant.

BRALEY, J. [1, 2] The defendant did not specifically require proof of his signature, and the note having been introduced, he offered evidence in support of his declaration in set-off which if sustained was more than 1. Banks and banking 315(3)—Right of set-sufficient to cover the plaintiff's claim. The off against claim of bank in course of liquida-judge, who heard the case without a jury distion determinable as of date when commis- allowed the set-off and found for the comsioner took possession.

In action to recover on note as asset of insolvent trust company, rights of defendant as plaintiff in set-off under G. L. c. 232, §§ 1, 2, were determinable as if writ had been dated the day commissioner of banks took over company for liquidation.

pany. The rights of the defendant as plaintiff in set-off under G. L. c. 232, §§ 1, 2, are to be determined as if the writ had been dated September 25, 1920, when the commissioner of banks took and retained possession of the company for the purpose of liquidating and winding up its affairs. Cosmopolitan Trust Company v. Ciarla, 239 Mass. 32, 36, 131 N. E. 337; Bailey v. Commissioner of Banks, 244 Mass. 499, 501, 138 N. E. 915. The company then held the promissory note Balance due partnership on checking account when insolvent trust company was taken of the defendant now in suit, and the firm of over for liquidation cannot be set-off against Horblit & Wasserman had a balance due note of individual partner, notwithstanding on a checking account of $6,941.84, which is partnership claim is assigned to individual. the first item of the declaration in set-off.

2. Banks and banking 315(3)-Partnership claim against insolvent trust company could not be set-off against note of individual part

ner.

(146 N.E.)

This claim was duly proved February 28, | give the defendant priority over other cred1921, the certificate of proof reading, “sub-itors of the same class. Bachrach v. Comject to rights of set-off to be hereafter deter-missioner of Banks, 239 Mass. 272, 275, 131 mined," and on March 1, 1921, the certifi- N. E. 857; Tremont Trust Co. v. Graham cate of proof was formally assigned to Was- Furniture Co., 244 Mass. 134, 137, 138 N. E. serman by the other member of the firm, 330. and the first dividend paid on the claim has been credited on the note by the commissioner. But these transactions separately or together did not change the legal character of the original deposit, which was a debt due from the company to the partnership September 25, 1920, and not to Wasserman individually. It cannot in the present action either by novation or subrogation be made a subject of set-off for his benefit.

[3] The second item is for a deposit of $400 "standing in his name as trustee," and the defendant's answer in set-off admitted that Wasserman as trustee for one Jacob Cutler had a claim which was duly proved and a certificate had been issued to him as trustee.

The defendant, although contending that the money was his own, did not controvert this admission, and the judge could find on all the evidence that Wasserman held this deposit as a fiduciary, and it could not be used to reduce his personal indebtedness.

But

[4] The last item is for $1,500, the amount paid for ten shares of the capital stock of the company, which is alleged never to have been legally organized, and that if the issuance of the stock was legal, the certificate required by law was never filed, and the transaction became or was void. See G. L. c. 156, §§ 41, 42, 43, chapter 172, § 18. the legality of the corporate organization of the company, as well as the liability of stockholders thereunder, is settled by Commissioner of Banks v. Cosmopolitan Trust Co., 247 Mass. 334, 142 N. E. 100. And the failure to file with the secretary of the commonwealth a certified copy of the records of the meeting at which the increase of capital stock was voted did not relieve the defendant of his primary obligation as a stockholdCunningham v. Commissioner of Banks, 249 Mass. 401, 144 N. E. 447.

er.

[5] If, without deciding, it is assumed that the amended answer sets forth an equitable defense which is permitted in actions at law by G. L. c. 231, § 31, the defendant finally invokes the doctrine of equitable set-off, citing with cases from other jurisdictions Holbrook v. Bliss, 9 Allen, 69; Spaulding v. Backus, 122 Mass. 553, 554; Abbott v. Foote, 146 Mass, 333, 334, 15 N. E. 773, 4 Am. St. Rep. 331; Perry v. Pye, 215 Mass. 403, 413, 102 N. E. 653. But in those suits no question of the winding up of an insolvent trust company was presented as in the case at bar, where the claim declared on is an asset of the company to be collected for the benefit of creditors, and to allow a set-off under the conditions appearing in the record would

The defendant's requests in so far as not given were denied rightly, and the exceptions to the exclusion of evidence not having been argued are treated as waived. Exceptions overruled.

GIFFORD v. EASTMAN.

(Supreme Judicial Court of Massachusetts. Suffolk. Feb. 28, 1925.)

I. Brokers 26-One with whose money stock is purchased by broker becomes owner of such stock, entitled to it on demand.

One with whose money stock is purchased by broker becomes owner of such stock, enti

tled to it on demand.

2. Brokers 29-Broker's failure to sell, and retention of stock held by him only as agent for sale, held evidence of intent to appropriate to himself.

Broker, holding customer's stock with directions to sell forthwith at the then quoted market price, or to return stock, held without discretionary power, so that failure to sell or return such stock for over two months was evidence of intent to appropriate to himself. 3. Appeal and error 1039(13)-Verdict for plaintiff not upset, though cause of action not precisely set forth in declaration.

Verdict for plaintiff in action against broker for neglect or refusal to sell or return stock belonging to plaintiff will not be upset, though cause of action is not precisely set

forth in declaration.
4. Appeal and error

197(3)-Question of variance between evidence and allegations of count cannot be raised for first time in Supreme Judicial Court.

Question of variance between evidence and allegations of count cannot be raised for first time in Supreme Judicial Court.

Exceptions from Superior Court, Suffolk County; R. W. Irwin, Judge.

Action of contract or tort by Fred W. Gifford against George A. Eastman, with trustee process. On defendant's exceptions to refusal to rule. Exceptions overruled.

A. Mehlinger, of Boston (G. A. A. Pevey, of
Boston,. on the brief), for plaintiff.
P. H. Kelley, of Boston, for defendant.

BRALEY, J. The plaintiff on or about November 18, 1919, having ordered the defendant, a stockbroker, to purchase 5,000 shares of "Oklahoma Oil stock" at 13 cents a share, the defendant notified him that the stock had been bought, and rendered a state

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

livery on demand.

Cushman v. Snow, 186

ment for $650, with a commission of $50 for his services, making the total amount $700, Mass. 169, 71 N. E. 529. But the plaintiff inwhich had been paid to the defendant when stead of demanding the stock left it in the the order was given. The jury could find defendant's possession for sale, and the deon the evidence introduced by the plaintiff | fendant ceased to be an agent to buy, and bethat on the defendant's advice the stock was came an agent to sell forthwith at 35 cents, left in his possession for sale, and that on the then quoted market price, or to return December 9, 1919, the plaintiff notified the the stock to the plaintiff. The defendant's defendant to sell it forthwith at 35 cents a agency was thus limited to an immediate share, the price at which the stock was then sale at a certain price, or to a return of the quoted, or to return the stock at once to the stock without delay. No discretionary powplaintiff. er was given, and his authority cannot be enlarged by his own interpretation of it. Mussey v. Beecher, 3 Cush. 511; Stollenwerck v. Thacher, 115 Mass. 224. The orders to sell, or to return, were given December 9, 1919, and the defendant between that date and Feb. 26, 1921, the date of the writ, having made no attempt or offer to return, there was evidence for the jury that he withheld the stock with the intention of appropriating it to himself.

The defendant neither sold nor delivered the stock, and the plaintiff sues in contract to recover the money back under a count on an account annexed for money had and received, and in tort under the second count the allegations of which are "that on or about November 18, 1918, the defendant was doing business as a stock broker in said Boston under the name of G. A. Eastman & Co."; that for the consideration of $700, paid by the plaintiff, "the defendant agreed to buy for and deliver to said plaintiff 5,000 shares of stock of the Boston O. K. Oil Company; that this consideration consisted of 13 cents per share for said stock and a broker's commission to said defendant of $50; that the defendant then reported to the plaintiff the purchase of said stock at said price but failed and neglected to deliver said stock or any part thereof to the plaintiff, and on demand therefor by the plaintiff induced the plaintiff to allow him to retain the said stock for a longer time for future sale, and on or about December 9, 1919, the plaintiff again demanded of the defendant that he then either sell said stock at the then market price of 35 cents a share, or $1,750, or deliver the said stock to the plaintiff; that the defendant then neglected and refused to execute said order of sale, and also neglected and refused to deliver said stock or any part thereof to the plaintiff, and thereby the plaintiff was deprived of the opportunity to sell said stock at an advanced price over and above the purchase price thereof, to the damage of the plaintiff in the sum of $1,750, and interest thereon from said date." Both counts are alleged to be for one and the same cause of action.

The defendant's evidence tended to show that after the plaintiff's notice and demand he attempted to sell the stock on the exchange where it was listed at 35 cents a share, but on the day when the order was given only two hundred shares were sold at the price, and he was unable to execute the order, and the stock thereafter never sold on the exchange for the price named by the plaintiff. [1, 2] The stock was bought with the plaintiff's money and when purchased it became the property of the plaintiff to whom the defendant as his agent was bound to make de

[3, 4] The defendant's sixth and seventh requests were properly refused. Spooner v. Holmes, 102 Mass. 503, 506, 3 Am. Rep. 491; Jones v. Cavanaugh, 149 Mass. 124, 126, 21 N. E. 306; Boston Supply Co. v. Rubin, 214 Mass. 217, 101 N. E. 133. But even if the defendant's first request that "upon all the evidence the plaintiff is not entitled to recover on the count numbered 1" should have been given, the plaintiff contends, that the second count is sufficient to support the action and the verdict. It has been held after a verdict for the plaintiff as in the case at bar, that the verdict will not be upset even if the cause of action is not precisely set forth in the declaration. McLean v. Richardson, 127 Mass. 339; Noyes v. Caldwell, 216 Mass. 523, 527, 104 N. E. 495. The defendant did not demur to the second count, and, if he relied on a variance between the evidence and the allegations of that count, he should have raised the question by a request similar to the request under the first count. It cannot be raised for the first time at the argument before us. McLean v. Richardson, 127 Mass. 339; Greenstein v. Chick, 187 Mass. 157, 72 N. E. 955; Oulighan v. Butler, 189 Mass. 287, 75 N. E. 726; Garfield v. Peerless Motor Car Co., 189 Mass. 395, 75 N. E. 695; McCormack v. Butland, 191 Mass. 424, 77 N. E. 761; Lafrance v. Desautels, 225 Mass. 324, 114 N. E. 312; Ryder v. Ellis, 241 Mass. 50, 134 N. E. 692. See Ridenour v. H. C. Dexter Chair Co., 209 Mass. 70, 95 N. E. 409.

The general verdict, being supported by the second count, must stand, and judgment may be entered thereon. West v. Platt, 127 Mass. 367, 371; Brown v. Woodbury, 183 Mass. 279, 67 N. E. 327; Commercial Wharf Corporation v. Boston, 208 Mass. 482, 487, 94 N. E. 805.

Exceptions overruled.

« ForrigeFortsett »