International Trust Co. v. Wilson

Barker, J. 1. The defendant does not now contend that a presiding justice has no power to order a verdict if the jury have returned their findings upon questions submitted to them, but have separated without arriving at a verdict. Such a course is warranted by the doctrine that, although a jury have separated, they may be ordered to correct an incomplete and defective finding when the circumstances are such as to make it certain that justice is done by the order. Mason v. Massa, 122 Mass. 477, and cases cited. Spencer v. Williams, 160 Mass. 17. When the law applied to the findings made by the jury, and to the evidence applicable to the remaining issues, gives to one party or the other, as matter of law, a clear right to a verdict, the jury [89] may properly be directed to render that verdict. In such a case it is certain that justice must be done by the order, and that the rights of the parties to have disputed facts found by the jury, and the law of the trial revised by the court of last resort, are not curtailed. As held in Roberts v. Rockbottom Co. 7 Met. 46, 49, the presiding justice “ had authority, at any time before verdict affirmed and recorded, to vary his instruction to the jury, in matter of law, and-the jury were in duty bound to be governed by it.” 2. If, as the defendant contends, the court had declined to permit the jury to consider the form of the notes upon the question whether the plaintiff should be charged with notice that there was an agreement between Cassells and the defendant limiting Cassells’s authority to borrow money for the firm to loans on notes payable to and indorsed by the defendant, such a ruling would have been wrong. As we construe the bill of exceptions the jury were permitted to consider the form of the notes, in connection with all the evidence, but were in effect also instructed that the form of the notes was not, as matter of law, conclusive upon the question. The defendant requested the court to instruct the jury that the form of the notes “ was notice to the plaintiff,” and that it “ gave notice to the plaintiff.” This would have been in substance a ruling that the form of the notes was, as matter of law, conclusive in favor of the defendant upon the question, and would have been contrary to the authorities. The true rule was that the jury might consider the form of the notes in connection with all the other evidence in determining the question whether they should in fact charge the plaintiff with notice of a limitation of the authority of Cassells to borrow money for his firm. Atlas National Bank v. Savery, 127 Mass. 75, 77. Freeman’s National Bank v. Savery, 127 Mass. 75. Thompson v. Hale, 6 Pick. 258. Wait v. Thayer, 118 Mass. 473, 478. In National Bank of the Commonwealth v. Law, 127 Mass. 72, the defendants’ indorsement being above that of the payee’s made it apparent in the light of St. 1874, c. 404, that their liability was conditional and secondary, and therefore, prima fade at least, for the accommodation of the maker. In that case the inference was made necessary by the effect of the statute; but the decision has no bearing in support of the defendant’s contention that the [90] inference of notice of a limitation upon the authority of one partner to borrow money for the use of his firm should have been held a necessary inference from the form of the note in the case at bar. It is obvious that the same form might have been used if Cassells’s authority had been unlimited. The case of Cutting v. Daigneau, 151 Mass. 297, cited upon this point by the defendant, has no bearing upon it. The note was one given to a partner by his firm, which became insolvent and was dissolved ; and the note when long past due was indorsed to the plaintiff merely that the action might not be defeated by the formal objection that the payee, being one of the promisors, could not bring an action against himself, and the action failed because, the firm having failed and its creditors not having been paid, there was no surplus to divide among its members, and the plaintiff stood no better than the original payee. In our opinion the ruling given did not withdraw the form of the notes from the consideration of the jury. The notes were in evidence, and the instruction could not have been understood to withdraw them from the jury, but merely to declare that they did not show or indicate notice conclusively or as matter, of law. 3. The only remaining contention argued by the defendant is, that the court finally withdrew from the jury the question whether the plaintiff should be charged with actual or constructive notice of Cassells’s fraud. The jury had found that in fact the plaintiff had no knowledge or notice of the limitation of Cassells’s authority, nor that he was then acting as an agent of the defendant, and not as a member of the firm. The remaining evidence applicable to the question was not sufficient to warrant a finding that the plaintiff did not take the notes and advance the money to the firm in good faith. There was no dispute that the plaintiff took the notes before maturity and for value. The evidence that Graham, its president, had noticed unusual facts about the bank account, indicating that the firm was not doing a flourishing business, that he had seen Cassells the worse for liquor and had thought of writing to the defendant about him, that he had notified Cassells on account of these things that lie would not discount for him to the extent he had been doing, and that he knew that the defendant was in business at Fitchburg [91] paying little attention to the business in Boston, and so practically at the mercy of Cassells if he was disposed to defraud him, were merely suspicious circumstances, consistent with the plaintiff’s good faith, and not sufficient to justify charging it with notice of any infirmity or taint in the transaction. There was no evidence of such recklessness as would be inconsistent with honesty of purpose or good faith. Smith v. Livingston, 111 Mass. 342. Freeman's National Bank v. Savery, 127 Mass. 75, 79. Lee v. Whitney, 149 Mass. 447. Exceptions overruled.