Allen, J.
We will first consider the exceptions taken by the defendant Spofford.
1. The note was rightly admitted in evidence.' The defendant’s indorsement admits the signature and capacity of every prior party. Prescott Bank v. Caverly, 7 Gray, 217. Byles on Bills, (13th ed.) 155. Dan. Neg. Instr. (4th ed.) §§ 669a, 675, 676. This includes the existence and capacity of a firm ; Dalrymple v. Hillenbrand, 62 N. Y. 5; and, by the same reasoning, the existence and capacity of a corporation.
2. The evidence offered as to the law of New York respecting usury was rightly excluded. The contract between the selling indorsers and the plaintiff was a Massachusetts contract, and is governed by the laws of this Commonwealth. Williams v. Wade, 1 Met. 82. Slacum v. Pomery, 6 Cranch, 221. Lee v. Selleck, 33 N. Y. 615. Greathead v. Walton, 40 Conn. 226. Dan. Neg. Instr. (4th ed.) § 899.
3. The presiding justice instructed the jury that there was no evidence from which they "would be justified in finding that the notice of dishonor which the law requires was given to either of the defendants. The question remains as to the alleged waiver of such notice by a subsequent unqualified promise to pay the note, with knowledge that no notice such as the law requires of the non-payment of the note had been given to him. There is no doubt that an indorser’s liability may be established' by proof of an unqualified promise to pay, or other unqualified admission of liability, made after a failure to give due notice to [495]*495him of the dishonor, if he had knowledge of all material facts. Hobbs v. Straine, 149 Mass. 212. Parks v. Smith, 155 Mass. 26. The defendant Spofford now argues that his alleged promise was before he knew that no notice had been sent to him. It seems probable thaf this view was not presented at the trial, and that it is not now open. But, however this may be, the evidence would well warrant a finding that he then had this knowledge. He testified that he had received no notice; and from the other evidence the jury might find that the proper time for the notice to come, if it had been duly sent, had passed, especially as he made no suggestion to the contrary at the trial.
The fifth and sixth requests for instructions were properly omitted to be given in terms, because it was not necessary for the plaintiff to show that the defendant knew that he was released from liability for want of due notice of the dishonor; it Avas enough if he knew the fact that no notice had been sent to him, without knowing the legal effect of such omission. Third National Bank v. Ashworth, 105 Mass. 503. Matthews v. Allen, 16 Gray, 594. Givens v. Merchants’ National Bank, 85 Ill. 442, 444. Dan. Neg. Instr. (4th ed.) § 1148. The rule is the same in case of a new promise by an infant after becoming of age. Morse v. Wheeler, 4 Allen, 570.
4. In respect to the special agreement declared on in the plaintiff’s second count, direct evidence was introduced without objection tending to prove that the plaintiff had agreed, as a part consideration for it, to go to New York and undertake to bring suit against the maker and the first indorsers, and use his best efforts to collect the note; and the court instructed the jury that, if the plaintiff so agreed, and failed to do so, such failure would not be an avoidance of the contract, and that the plaintiff could recover the amount claimed in said count up to the time of the trial, after deducting therefrom any damages which the jury might find the defendants had sustained by reason of such failure. But the defendant excepted to the exclusion of evidence that, at the time the note was purchased of the defendant by the plaintiff, he held the note in his possession for several days, and agreed to look up the responsibility of the makers, and did so, and said that they were all right and perfectly good, and he would take the note. This evidence was properly excluded. [496]*496The note was bought by the plaintiff in March, 1893, and the agreement declared on was dated July 8, 1893. The evidence offered had no legitimate tendency to prove that at the latter date the plaintiff agreed to do the things asserted.
5. The defendant contends that the court erred in allowing the plaintiff to recover on the second count to the time of the trial. No such point was taken at the trial. But the ruling was right. Union Institution for Savings v. Boston, 129 Mass. 82. Bowers v. Hammond, 139 Mass. 360. Lamprey v. Mason, 148 Mass. 231. Schmidt v. People’s National Bank, 153 Mass. 550.
We come now to the exception taken by the plaintiff in respect to the liability of the defendant Chamberlin. The only question saved is whether the plaintiff had any evidence for the jury to show that Chamberlin had received notice of the dishonor of the note, or that he had waived notice thereof.
The notarial certificate did not show any notice to either of the defendants, and there was no evidence of such notice to Chamberlin, except from his subsequent conversations with the plaintiff’s attorney, and from the fact of his entering into the subsequent agreement which is declared on in the second count. These conversations included no direct admission by Chamberlin that he had received such notice, and no direct acknowledgment of liability or promise to pay. Instead of calling somebody to testify that such a notice was sent or given to Chamberlin, the plaintiff wished to ask the jury to infer this fact from the conversations and the fact of the subsequent agreement, or else to find a waiver of such notice.
A distinction is sometimes taken between evidence which will warrant an inference that due notice of dishonor was in fact given, and evidence of a waiver of the omission to give such notice. This distinction was adverted to in Andrews v. Boyd, 3 Met. 434, where the evidence was held sufficient to show a waiver, if not to warrant a finding of actual notice. The decisions which go furthest in admitting circumstances to go to the jury as evidence of- actual notice have been criticised in 1 Pars. Notes & Bills, 616, and Dan. Neg, Instr. (4th ed.) § 1160. If circumstantial evidence alone is relied on, it may often be easier to establish a waiver than the fact of actual notice, but the general considerations which weigh in determining the sufficiency of such evidence are much alike in both cases.
[497]*497In this Commonwealth, where one is under no existing liability upon a contract, either because the contract was made during infancy, or by reason of the statute of limitations, or of a discharge in insolvency, or because his name has been forged or signed without authority, or for want of demand or notice of dishonor to an indorser of a bill or note, and it is sought to establish a liability by proof of ratification, new promise, adoption, or admission of liability, the rule has been held with some strictness that the proof must be clear and distinct. See, as to cases of infancy, Proctor v. Sears, 4 Allen, 95; Tobey v. Wood, 123 Mass. 88 ; as to cases under the statute of limitations, Weston v. Hodgkins, 136 Mass. 326; Krebs v. Olmstead, 137 Mass. 504; Custy v. Donlan, 159 Mass. 245; Boynton v. Moulton, 159 Mass. 248 ; as to cases of discharge in insolvency, Bigelow v. Norris,
Free access — add to your briefcase to read the full text and ask questions with AI
Allen, J.
We will first consider the exceptions taken by the defendant Spofford.
1. The note was rightly admitted in evidence.' The defendant’s indorsement admits the signature and capacity of every prior party. Prescott Bank v. Caverly, 7 Gray, 217. Byles on Bills, (13th ed.) 155. Dan. Neg. Instr. (4th ed.) §§ 669a, 675, 676. This includes the existence and capacity of a firm ; Dalrymple v. Hillenbrand, 62 N. Y. 5; and, by the same reasoning, the existence and capacity of a corporation.
2. The evidence offered as to the law of New York respecting usury was rightly excluded. The contract between the selling indorsers and the plaintiff was a Massachusetts contract, and is governed by the laws of this Commonwealth. Williams v. Wade, 1 Met. 82. Slacum v. Pomery, 6 Cranch, 221. Lee v. Selleck, 33 N. Y. 615. Greathead v. Walton, 40 Conn. 226. Dan. Neg. Instr. (4th ed.) § 899.
3. The presiding justice instructed the jury that there was no evidence from which they "would be justified in finding that the notice of dishonor which the law requires was given to either of the defendants. The question remains as to the alleged waiver of such notice by a subsequent unqualified promise to pay the note, with knowledge that no notice such as the law requires of the non-payment of the note had been given to him. There is no doubt that an indorser’s liability may be established' by proof of an unqualified promise to pay, or other unqualified admission of liability, made after a failure to give due notice to [495]*495him of the dishonor, if he had knowledge of all material facts. Hobbs v. Straine, 149 Mass. 212. Parks v. Smith, 155 Mass. 26. The defendant Spofford now argues that his alleged promise was before he knew that no notice had been sent to him. It seems probable thaf this view was not presented at the trial, and that it is not now open. But, however this may be, the evidence would well warrant a finding that he then had this knowledge. He testified that he had received no notice; and from the other evidence the jury might find that the proper time for the notice to come, if it had been duly sent, had passed, especially as he made no suggestion to the contrary at the trial.
The fifth and sixth requests for instructions were properly omitted to be given in terms, because it was not necessary for the plaintiff to show that the defendant knew that he was released from liability for want of due notice of the dishonor; it Avas enough if he knew the fact that no notice had been sent to him, without knowing the legal effect of such omission. Third National Bank v. Ashworth, 105 Mass. 503. Matthews v. Allen, 16 Gray, 594. Givens v. Merchants’ National Bank, 85 Ill. 442, 444. Dan. Neg. Instr. (4th ed.) § 1148. The rule is the same in case of a new promise by an infant after becoming of age. Morse v. Wheeler, 4 Allen, 570.
4. In respect to the special agreement declared on in the plaintiff’s second count, direct evidence was introduced without objection tending to prove that the plaintiff had agreed, as a part consideration for it, to go to New York and undertake to bring suit against the maker and the first indorsers, and use his best efforts to collect the note; and the court instructed the jury that, if the plaintiff so agreed, and failed to do so, such failure would not be an avoidance of the contract, and that the plaintiff could recover the amount claimed in said count up to the time of the trial, after deducting therefrom any damages which the jury might find the defendants had sustained by reason of such failure. But the defendant excepted to the exclusion of evidence that, at the time the note was purchased of the defendant by the plaintiff, he held the note in his possession for several days, and agreed to look up the responsibility of the makers, and did so, and said that they were all right and perfectly good, and he would take the note. This evidence was properly excluded. [496]*496The note was bought by the plaintiff in March, 1893, and the agreement declared on was dated July 8, 1893. The evidence offered had no legitimate tendency to prove that at the latter date the plaintiff agreed to do the things asserted.
5. The defendant contends that the court erred in allowing the plaintiff to recover on the second count to the time of the trial. No such point was taken at the trial. But the ruling was right. Union Institution for Savings v. Boston, 129 Mass. 82. Bowers v. Hammond, 139 Mass. 360. Lamprey v. Mason, 148 Mass. 231. Schmidt v. People’s National Bank, 153 Mass. 550.
We come now to the exception taken by the plaintiff in respect to the liability of the defendant Chamberlin. The only question saved is whether the plaintiff had any evidence for the jury to show that Chamberlin had received notice of the dishonor of the note, or that he had waived notice thereof.
The notarial certificate did not show any notice to either of the defendants, and there was no evidence of such notice to Chamberlin, except from his subsequent conversations with the plaintiff’s attorney, and from the fact of his entering into the subsequent agreement which is declared on in the second count. These conversations included no direct admission by Chamberlin that he had received such notice, and no direct acknowledgment of liability or promise to pay. Instead of calling somebody to testify that such a notice was sent or given to Chamberlin, the plaintiff wished to ask the jury to infer this fact from the conversations and the fact of the subsequent agreement, or else to find a waiver of such notice.
A distinction is sometimes taken between evidence which will warrant an inference that due notice of dishonor was in fact given, and evidence of a waiver of the omission to give such notice. This distinction was adverted to in Andrews v. Boyd, 3 Met. 434, where the evidence was held sufficient to show a waiver, if not to warrant a finding of actual notice. The decisions which go furthest in admitting circumstances to go to the jury as evidence of- actual notice have been criticised in 1 Pars. Notes & Bills, 616, and Dan. Neg, Instr. (4th ed.) § 1160. If circumstantial evidence alone is relied on, it may often be easier to establish a waiver than the fact of actual notice, but the general considerations which weigh in determining the sufficiency of such evidence are much alike in both cases.
[497]*497In this Commonwealth, where one is under no existing liability upon a contract, either because the contract was made during infancy, or by reason of the statute of limitations, or of a discharge in insolvency, or because his name has been forged or signed without authority, or for want of demand or notice of dishonor to an indorser of a bill or note, and it is sought to establish a liability by proof of ratification, new promise, adoption, or admission of liability, the rule has been held with some strictness that the proof must be clear and distinct. See, as to cases of infancy, Proctor v. Sears, 4 Allen, 95; Tobey v. Wood, 123 Mass. 88 ; as to cases under the statute of limitations, Weston v. Hodgkins, 136 Mass. 326; Krebs v. Olmstead, 137 Mass. 504; Custy v. Donlan, 159 Mass. 245; Boynton v. Moulton, 159 Mass. 248 ; as to cases of discharge in insolvency, Bigelow v. Norris, 139 Mass. 12; Kenney v. Brown, 139 Mass. 345; as to cases of forgery or unauthorized signature, Greenfield Bank v. Crafts, 2 Allen, 269, and 4 Allen, 447; Traders’ National Bank v. Rogers, ante, 315; and as to cases of indorsers, Creamer v. Perry, 17 Pick. 332; Parks v. Smith, 155 Mass. 26. An unqualified admission of liability, or a direct promise to pay, which imports such admission, is evidence of the most satisfactory kind. Evidence of circumstances or of conversations which are equivocal in their character, and which do not import a clear admission of liability, or amount to a distinct promise to pay, and which are consistent with the view that the indorser was merely seeking to avoid or postpone a suit against himself, are not satisfactory evidence either to prove actual notice or to reestablish the indorser’s liability after it has ceased for want of demand or notice.
We lay no stress on the defendant’s contention that he was ignorant of the fact that a demand had been made. If no demand had been made, that fact would be material, because it would release the indorsers from liability. But a fact which would not release them from liability is immaterial, and if the indorsers in this case assumed that a demand was made, they were not harmed by that assumption. We also think the evidence was sufficient to warrant a finding that Chamberlin knew that no notice had been given to him, because he knew that he had received none.
[498]*498But the plaintiff’s evidence fails to show an admission of liability by Chamberlin, or a new promise, with such distinctness as the law requires. His words and acts were at most equivocal, and were consistent with another hypothesis than that of an admission of liability. In Creamer v. Perry, 17 Pick. 332, there was evidence that the indorser said, “ The note will be paid.” The court said, “ This is quite as consistent with the hypothesis, that it was a mere assertion of his expectation, that it would be paid by the promisor, as of a promise on his own part to pay it.” Accordingly it was held that the plaintiff was not entitled to go to the jury. See also Haskell v. Boardman, 8 Allen, 38. Where the evidence is equally consistent with some other hypothesis than that which the plaintiff is bound to establish, his case fails. Smith v. First National Bank, 99 Mass. 605. This doctrine is often applied in accident cases. See also Tobey v. Wood, 123 Mass. 88, and Smith v. Kelley, 13 Met. 309, where it was held that there was nothing for the jury to show ratification by an infant after he came of age. In the present case, it is quite plain that the defendant disliked to be sued, and perhaps * was afraid that he might be held bound to pay the note; but upon the evidence the jury would not have been warranted in finding that he assumed the duty of paying it, or waived the notice of dishonor. All that he said or did was equally consistent with another hypothesis. See also Hussey v. Freeman, 10 Mass. 84; Dan. Neg. Instr. (4th ed.) § 1163, where other instances of equivocal words being held insufficient to show waiver are cited.
The subsequent written agreement has no greater effect. The promise which it contained was limited to interest.
Exceptions overruled.