Pine v. Smith

Merrick, J. The note set out in the declaration was indorsed and transferred to the plaintiff on the last day of grace. It was then due; and payment might have been demanded of the maker at any reasonable hour during the day. Staples v. Franklin Bank, 1 Met. 43. Whitwell v. Brigham, 19 Pick. 117. She took it therefore after it had in fact become due, and held it subject to any defence which might have been made available against it while in the hands of the payee. Ayer v. Hutchins, 4 Mass. 370. Sargent v. Southgate, 5 Pick. 312. Portland Bank v. Maine Bank, 11 Mass. 204. For this reason the objection taken to the competency of the defendant as a witness to facts having a tendency to prove any illegality in the inception of the note, because he was the maker of it, cannot be sustained. The rule that a maker or indorser shall not be permitted by his testimony to invalidate a security which he has put in circulation, and given credit to by his signature has never 41 been extended to notes negotiated after they have become due and payable. On the contrary it has been expressly determined that in such case the indorser is a competent witness, and his testimony admissible in relation to any matters which may be given in evidence in defence. Thayer v. Crossman, 1 Met. 416. Newell v. Holton, 10 Gray, 350. A question has arisen as to the place where the contract was made. Very plainly we think it appears that it was made in Massachusetts and not in the State of New York. There was a conversation between the parties upon the subject in that state ; an agreement between them that they would at a future time enter into such a contract if a particular contingency, namely, the payment of a debt due to James Pine from the assignees of Wilson, should afterwards occur; but no contract was then made. The contract was completed afterwards at Lenox. The maker resided there; the note was actually written and signed at that place; he there received the borrowed money for which it was given ; and by direction of the payee remitted the note from thence to him at New York. These various circumstances are decisive as to the question in relation to the place where the contract was executed. They are wholly inconsistent with the assumption that it was executed in the State of New York ; and show clearly that it was consummated in Massachusetts. And it is therefore to be construed according to our laws, by which the nature and validity, obligation and effect of the contract are to be determined. 2 Parsons on Con. 95. Carnegie v. Morrison, 2 Met. 381. By their verdict the jury have found that interest was reserved in said note at the rate of eight dollars for the forbearance of payment of one hundred dollars for the term of one year. This is a greater rate than is allowed by law, and therefore, according to the provisions of the statute upon the subject, the plaintiff forfeits threefold the amount of the unlawful interest. After deducting this forfeiture, he will have judgment for the -balance remaining due. But full costs are to be allowed to and recovered by, the defendant. St. 1846, c. 199, § 1.