Tucker v. Tucker

119 Mass. 79, 1875 Mass. LEXIS 67

• Court: Massachusetts Supreme Judicial Court
• Decided: October 28, 1875
• Status: Published

Opinion

Gray, C J.

The note declared on was dated July 1,1869, for $1000 payable on demand. The evidence at the trial was that the plaintiff lent the defendant $1000 in July, in 1868 or 1869, and at the same time received from him a note, which, there being no evidence when it was payable, might be presumed to be payable on demand; and that this note had been lost and could not be produced. This evidence was sufficient, in the absence of evidence that any other note of this amount was ever given by the defendant to the plaintiff, to identify the note in suit, and to warrant the jury in returning a verdict for the plaintiff, and the court in rendering judgment in her favor upon her filing a sufficient bond of indemnity. Clark v. Houghton, 12 Gray, 38. Goddard v. Sawyer, 9 Allen, 78. Nichols v. Allen, 112 Mass. 23. Tower v. Appleton Bank, 3 Allen, 387. McGregory v. McGregory, 107 Mass. 543.

The assignment of all the payee’s right in the note, without any indorsement, did not prevent the maintenance of an action upon the note in the name of the payee. Foss v. Nutting, 14 Gray, 484. Cock v. Fellows, 1 Johns. 143. Smalley v. Wight, 44 Maine, 442. Exceptions overruled.