Peaslee v. Robbins

44 Mass. 164

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1841
• Status: Published

Opinion

Wilde, J.

It is quite clear, we think, that the evidence, to which the defendant objected at the trial in the court below, was material to the issue and rightly admitted ; and that the instructions to the jury were correct.

The plaintiff is bound .to show a legal transfer of the note, by proof of the handwriting of the. indorser; and it follows as a necessary consequence, that the defendant must be allowed to impeach the plaintiff’s title to the note, by showing that the indorsement was void. Evidence therefore of the indorser’s mental incapacity to make a valid contract, at the time he indorsed the note, was material evidence ; and not the less material because the same incapacity existed when the note was signed All the evidence of the indorser’s incapacity, before and after the indorsement, was properly submitted to the jury, to enable them to decide correctly on the question of his incapacity, at the time of the indorsement.

Then as to the instructions to the jury, it is objected, that there was no evidence authorizing the presumption that the plaintiff purchased the note immediately of Parker, the note being indorsed in blank. But the plaintiff could not maintain his action without filling up the blank with an order making the note payable to himself; and if he declared on the note, he must have averred that Parker ordered it to be paid accordingly. There was, therefore, prima facie evidence that the note was so transferred. If it were material, the defendant might have disproved the fact, by calling the person of whom he purchased the note, as a witness ; and so it was held by the court at the trial; the jury having been instructed, that the presumptive evidence of the transfer was not conclusive.

Exceptions overruled.