Fay v. Hunt

77 N.E. 502, 190 Mass. 378, 1906 Mass. LEXIS 1090

• Court: Massachusetts Supreme Judicial Court
• Decided: February 28, 1906
• Status: Published

Opinion

Loring, J.

[After the foregoing statement of the case.] The defendants in their .brief state that they rely upon all objections set forth in the exceptions. None, therefore, are waived. We do not think it necessary, however, to notice those not argued.

The law presumes, in the absence of fraud, that the defendants read the note signed by them. Grace v. Adams, 100 Mass. 505.

The holder of a promissory note who has no beneficial interest in it can maintain an action on it. National Pemberton Bank v. Porter, 125 Mass. 333. Haskell v. Avery, 181 Mass. 106.

There was evidence of a consideration for the original note in the promise to end the proceedings in the police court if the note was given. It further appears, if material, that this promise has been kept; no further proceedings in the police court were ever taken. If the defendants had wished to have those proceedings dismissed of record, they could have had that done.

Holt, the surety, is liable if he gave the note in consideration of the promise to end the proceedings in the police court. If authority were needed for this it may be found in the case relied on by the defendants, Sumner v. Williams, 8 Mass. 162.

The amendment of the answer was a matter entirely within the discretion of the Superior Court. R. L. c. 173, § 48. Richmond Iron Works v. Woodruff, 8 Gray, 447. Smith v. Whiting, 100 Mass. 122. If the presiding judge was satisfied that the purpose of the amendment was vexation and delay and not the setting up of what was honestly thought to be a defence, it was proper to refuse the defendants’ motion.

Bxeeptions overruled.