Phillips v. Eldridge

108 N.E. 909, 221 Mass. 103, 1915 Mass. LEXIS 788

Opinion

Loring, J.

There was evidence that the note here in suit was procured by duress practiced by the payee on the makers. If that evidence was believed, the plaintiff to recover had the burden of proving that he was a holder in due course as defined in B,. L. c. 73, § 69. The plaintiff and the payee, when called as adverse witnesses by the defendants, testified to facts which would have warranted a finding that the plaintiff was a holder in due course. But the jury were not bound to believe their testimony, although uncontradicted, and therefore a verdict for the plaintiff could not have been directed as matter of law.

When testimony warranting a finding that the plaintiff was a holder in due course of a note originating in fraud is given by witnesses called by the plaintiff, it is settled that a verdict cannot be directed for the plaintiff as matter of law. Merchants’ National Bank v. Haverhill Iron Works, 159 Mass. 158. Stouffer v. Curtis, 198 Mass. 560. And see generally in this connection Lindenbaum v. New York, New Haven, & Hartford Railroad, 197 Mass. 314; Demelman v. Brazier, 198 Mass. 458, 465; Giles v. Giles, 204 Mass. 383, 385; Leary v. William G. Webber Co. 210 Mass. 68.

The fact that the testimony in the case at bar was given by witnesses called by the defendants as adverse witnesses does not change the result. That was in effect decided in Emerson v. Wark, 185 Mass. 427.

It should be added that the testimony given by the adverse witnesses in the case at bar did not have to be disbelieved in toto to warrant a finding in favor of the defendants. The plaintiff testified that in case the note sued on was not paid by the defendants no credit was to be allowed to the payee by reason of the transfer of the note to him by the payee. This testimony, taken in connection with the intimacy between the plaintiff and the payee and the payee’s testimony that he was to give the makers credit for $826 in the event of the sale of one of the cranberry bogs,

Footnotes

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* justified a finding that the plaintiff was not a holder in due course even if the story told by the plaintiff and the payee was not disbelieved in toto.

There is nothing in the cases cited by the plaintiff which requires special notice.

Exceptions sustained.

Gleason had charged the defendant Eldridge with cheating him in the matter of the sale to him of two cranberry bogs by Eldridge who had procured them from their owners and had misrepresented to Gleason the prices he had paid. The note was demanded by Gleason as a payment of the money improperly obtained by Eldridge in these transactions.