Black v. Ridgway

131 Mass. 80, 1881 Mass. LEXIS 189

Opinion

Soule, J.

The auditor’s report was prima facie evidence of the truth of the facts found relating to the liability of the defendants on the note in suit. Gen. Sts. c. 121, § 46. It found that the defendants signed the note on the back, and owed the plaintiff the amount of it with interest and the costs of protest. As the note was made after the St. of 1874, c. 404, took effect, they could not owe this unless their liability had been fixed by due notice of demand and nonpayment, or by a waiver of such notice. The report therefore contained evidence which would warrant a finding that the defendants had been notified or had waived notice, and the ruling to that effect by the judge who presided at the trial was correct. It follows that the three requests of the defendants for rulings on the matter of notice were properly refused.

The fourth ruling asked for by the defendants was rightfully refused. It appeared that John J. Ridgway had enjoyed some benefit from the agreement, in consideration of which the note in suit was given. He had been made agent for the Hew York Calcium Light Company, had sold some gas to the plaintiff in consequence, and had sold more or less gas to others. Even if the plaintiff had violated the agreement to the injury of said Ridgway, the consideration of the note had not therefore wholly failed, and Ridgway was entitled only to a reduction of the amount which he had agreed to pay, equal to the injury which he had sustained by the misconduct of the plaintiff. Gordon v. Parmelee, 15 Gray, 413. Bassett v. Percival, 5 Allen, 345.

The fifth ruling asked for was not given in the terms of the request. But the ruling given, as applied to the evidence in the case, embraced the subject matter of the request, and was all that the defendants were entitled to.

Exceptions overruled.