Stouffer v. Curtis

Loring, J. This is an action against the acceptor of two bills of exchange payable to the Lyons-Taylor Company, the drawer. They purported to be indorsed: “Lyons-Taylor Co. by M. H. Taylor.” The delivery of the bills was specifically denied by the answer. The only evidence introduced by the plaintiff was the bills which were annexed to the deposition of M. H. Taylor, and the deposition of that witness. Taylor testified that he had authority to sign the name of the firm on negotiable paper, “ that he had in his possession the bills of exchange declared upon,” and [562] “ that he annexed the bills of exchange with the indorsements thereon to his deposition.” The defendant asked that the jury be directed to return a verdict in his favor. This was refused and an exception was taken. The presiding judge directed the jury to return a verdict for the plaintiff, and to this an exception was taken. We are of opinion that both exceptions must be sustained. • 1. Counsel for the plaintiff in their brief state that the two bills of exchange had been sent by the plaintiff to Taylor in order that he might annex them to his deposition. But that is just what was lacking in the plaintiff’s evidence. All the evidence introduced by the plaintiff on the issue of delivery was that Mr. Taylor, who acted in the matter for the firm, who drew the bills and was the payee of them, had them in his possession when he gave his deposition. So far as the evidence went, therefore, they never were delivered. On the evidence the jury should have been directed to return a verdict for the defendant for want of evidence of delivery. An instrument in the form of a bill of exchange payable to the order of the drawer does not come into existence as a bill of exchange until it is delivered as well as-indorsed by the payee. R.. L. c. 73, § 33. Commonwealth v. Ballinger, 118 Mass. 439. Adams Bank v. Jones, 16 Pick. 574. Prescott v. Brinsley, 6 Cush. 233. 2. It does not appear that the defendant did not wish to go to the jury on the truth of the facts testified to by Taylor.; He had a right to ask the jury to disbelieve every fact testified to by him. Lindenbaum v. New York, New Haven, & Hartford Railroad, 197 Mass. 314, and cases there collected. See particularly Commonwealth v. McNeese, 156 Mass. 231. Devine v. Murphy, 168 Mass. 249. For that reason, a verdict for the plaintiff could not have been ordered as matter of law had the plaintiff’s evidence been sufficient. Exceptions sustained.