Allied Furriers Corp. v. Lisker

Crosby, J. This is an action upon a promissory note brought in the Municipal Court of the City of Boston. The note was given in New York City by the maker, a resident of Boston, to the payee, a New York company, in part payment for goods purchased from the latter; to this note in the payee’s hands there was an equitable defence arising from the defective quality of the goods. The payee before maturity indorsed the note in blank and delivered it in New York to the plaintiff in part payment of a previous note of his held by it. Certain requests of the defendant for rulings were refused, and he appealed from an order of the Appellate Division dismissing the report. The defendant contends that there was no evidence to warrant a finding that the note was indorsed and delivered to the plaintiff by the payee. The judge made the following with other findings: “The declaration is upon a promissory note for $727.50 made by the defendant to the order of J. P. Reinstein and Son, and indorsed by the payees in blank, the note maturing on November 15, 1920, and being dated at New York City, and being payable at the Cosmopolitan Trust Company, Boston, Massachusetts. The note was not paid at maturity and was duly protested. ... It further appeared in evidence that the plaintiff was a creditor of a New York corporation, Reinstein, Ettleson and School, Inc., which negotiated to the plaintiff in part payment of that debt a certain note made by said J. P. Reinstein and Son; that when this note of J. P. Réinstein and Son matured, [414] the makers thereof paid the same in part to the plaintiff by transferring to the plaintiff the note of this defendant here in suit; that said transfer of the note in suit by said J. P. Reinstein and Son to the plaintiff was made before maturity of said note; that the transfer of said note in suit from said J. P. Reinstein and Son to the plaintiff took place in New York City.” It is apparent that the use of the word “transfer” in the report does not affect the finding, and was intended to describe a delivery of the note duly indorsed. As it appears from the report that there was evidence the plaintiff did not know and had no reason to know of any defect or infirmity in the note or of any equitable defences which might exist thereto as between the maker and payee, and as the trial judge found for the plaintiff, the latter is deemed prima facie to be a holder in due course. G. L. c. 107, § 82. The defendant further contends that, even if the note was indorsed to- the plaintiff, such indorsement is governed by the law of New York, and thereunder the plaintiff is not a holder for value, for the reason that a note given for a pre-existing debt “does not make the receiver thereof a bona fide holder for value .and gives to the receiver thereof no greater rights than those of the person transferring the said note to him.” Certain New York decisions were put in evidence by the defendant at the trial as showing that the law of that State did not recognize one who held such a note as a holder in due course for value. Three of these decisions purport to represent the common law as it existed before the enactment of the negotiable instruments law. Turner v. Treadway, 53 N. Y. 650. Atlantic National Bank of New York v. Franklin, 55 N. Y. 235. Comstock v. Hier, 73 N. Y. 269. The fourth case apparently was submitted as evidence of the law of New York since the adoption of that act. Hover v. Magley, 96 N. Y. Supp. 925. In this case the statute is cited in the opinion. Laws of N. Y. 1897, c. 612, §§ 51, 52. The following is therein quoted: “By section 51 it is provided that: 'Value is any consideration sufficient to support a simple contract. An antecedent or pre-existing debt constitutes value; and is deemed such whether the instrument is payable on demand or at a future time/” The provisions of the quoted statute are identical with the corresponding provisions of our negotiable instruments law415 G. L. c. 107, §§ 48, 49. There being no evidence to the contrary the New York statute is presumed to be still in force in that State. The Pawashick, 2 Lowell, 142, 144. The construction placed upon the statute in Hover v. Magley, supra, is not pertinent to the case at bar. The court there in construing upon demurrer an answer which alleged that “the note was given for a pre-existing debt of the husband of the defendant,” held that this allegation was not one of payment of the original obligation, but a mere statement that the note was given as further security for the former debt. The present case is distinguishable by the finding that the note was given “to the plaintiff in part payment of that debt.” Construing the statute so far as applicable to this case, it therefore appears that value was given by the plaintiff. National Investment & Security Co. v. Corey, 222 Mass. 453. Even if there were error in the refusals of the judge to rule that the question of value was governed by the law of New York and to determine what that law was, which we do not decide, it was not prejudicial error. See Ives v. Farmers’ Bank, 2 Allen, 236; Woodruff v. Hill, 116 Mass. 310; Roland M. Baker Co. v. Brown, 214 Mass. 196; Walling v. Cushman, 238 Mass. 62, 65; G. L. c. 233, § 70. If the decision in Hover v. Magley, supra, was not admissible to prove the New York statute, and if an objection thereto by the plaintiff might have been sustained, G. L. c. 233, § 70, Free v. Southern Railway, 78 S. C. 57, Seiders v. Merchants Life Association of the United States, 93 Texas, 194, 200, yet the defendant, having offered the evidence, cannot now complain, nor object to any result which its probative significance was adequate to require. If .the evidence was not competent to prove the statute, it is only because an authenticated printed copy of the statute is deemed the better evidence. G. L. c. 233, § 70. Raynham v. Canton, 3 Pick. 293, 296. Commonwealth v. Wakelin, 230 Mass. 567, 576, and cases cited. The evidence was sufficient to. prove the statute, and the fact that it was not before a court of last resort is unimportant. The conclusion reached disposes of all the exceptions argued and they need not be considered singly. Order dismissing report affirmed.