Mumford v. Coghlin

Crosby, J. This is an action to recover the balance of $2,000, and interest, alleged to be due on a promissory note. The maker of the note was Coghlin-Wilson Electric Company and it was signed on behalf of the company by the treasurer (the defendant), and indorsed by him, one McLaughlin, and one Wilson. It was dated December 1, 1916, and was payable to the plaintiff at its place of business six months after date. The plaintiff called as a witness one Frazer, a notary public, who testified that he protested the note and notified the three indorsers by depositing notices in a mail box on Summer Street in Boston; that at the time of protest he attached a certificate of protest to the note, and entered in — 188 — a book a record of the protest; that the book was kept by him in the ordinary course of business and that all the entries were in his handwriting. He further testified that in protesting the note he followed the usual procedure and that except for the record he had no recollection of the transaction. At the close of the evidence, the defendant moved that a verdict be directed in his favor; the motion was denied and the jury returned a verdict for the plaintiff. The case is before us on the defendant’s exceptions to the refusal of the trial judge to direct a verdict, to the admission and exclusion of evidence, to the refusal of the trial judge to give certain requests for rulings, and to certain parts of the charge to the jury. The record book kept by Frazer as a notary public was properly admitted in evidence to show that the note had been duly protested. Notaries public hold office under our Constitution (art. 4 of Amendments to the Constitution of Massachusetts), and entries made by them in a book kept in the regular course of business are deemed original acts, and are admissible to the extent that the facts stated are within the scope of their duty as defined by custom or statute. While Frazer testified that he had no recollection of the transaction independent of the entry on his book, he stated that from his usual practice in protesting notes, keeping his book, and making entries therein, he believed that the notices had been sent. This testimony was admissible and if believed was sufficient to prove the protest of the note, which included the sending of notices to the indorsers. Such books have long been held admissible in evidence. The entry in the book kept by the witness was admissible to refresh his memory and the book itself was properly admitted. Shove v. Wiley, 18 Pick. 558. Adams v. Coulliard, 102 Mass. 167, 173. Costello v. Crowell, 133 Mass. 352. The deposit of the notice in the mail box in the street was the same in legal effect as if it had been deposited in a box at the post office. Johnson v. Brown, 154 Mass. 105. The notary testified that he attached a notarial certificate tp the note, that this certificate had been lost, and after — 189 — search could not be found. Under these circumstances a copy of the original was properly admitted in evidence. G. L. c. 107, § 13, provides that “ The protest of a bill of exchange, promissory note or order for the payment of money certified by a notary public under his hand and official seal shall be prima facie evidence of the facts stated in such protest, and of the giving of notice to the drawer or endorser.” As the original certificate would have been admissible, Johnson v. Brown, supra, Feigenspan v. McDonnell, 201 Mass. 341, yet, having been lost and not found after diligent search, an exact copy was competent. Secondary evidence was admissible in accordance with the general rule that where a written document has been lost its contents may be proved by an authenticated copy. See Cooley v. Collins, 186 Mass. 507. The contention of the defendant, that the statute refers to the original protest and that a copy cannot be admitted in evidence even if the original is lost, cannot be sustained for the reasons stated. The defendant was permitted to introduce the testimony of McLaughlin (one of the indorsers), that he did not receive notice of dishonor; this evidence was afterwards excluded subject to the defendant’s exception. McLaughlin was not a party to the suit and the question, whether he received notice as an indorser, was wholly immaterial. The fact that the notary’s book showed that the note had been protested as' to all three indorsers was admissible only so far as it related to the defendant. If he felt that he was prejudiced by the introduction of the part of the record relating to the other indorsers, he should have requested the trial judge that it be limited to the defendant. The only indorser the plaintiff sought to hold in this suit was the defendant. Whether any other indorser had been properly charged with notice was of no importance and the judge so instructed the jury. For the purpose of showing that the maker had been granted an extension of time for payment without the consent of the defendant, who was thereby discharged, the defendant offered to prove that the president of the maker — 190 — expressed, to the president of the plaintiff a willingness to pay the note and the latter told him to make payments to another creditor of the maker. This offer was rightly rejected: it fails to show a valid agreement; and it does not appear that payments were made to the creditor of the maker or that the maker made a tender to the plaintiff of the amount due on the note or did anything which he was not already bound to do. The offer fell far short of an offer to prove a valid agreement to extend the time for payment; besides, it was without consideration, was not binding on the plaintiff, and did not operate to discharge the indorsers. Wilson v. Powers, 130 Mass. 127. Way v. Dunham, 166 Mass. 263. The defendant’s fifth request was rightly denied. The notary testified that he protested the -note. The word “ protest ” includes all the steps necessary to charge an indorser. Demelman v. Brazier, 198 Mass. 458, 463. As a certificate of protest made by a notary public is prima facie evidence of presentment, G. L. c. 107, § 13, Johnson v. Brown, supra, it could not properly have been ruled that there was no evidence from which the jury could find that the note was duly presented for payment. The testimony of the notary that in his usual and regular course of procedure he exhibited notes when demanding payment is evidence that he did so in the present case. Holden v. Prudential Ins. Co. of America, 191 Mass. 153. Prudential Trust Co. v. Hayes, 247 Mass. 311. As the jury could not properly have been' instructed that the note had been discharged by a material alteration, the refusal of the trial judge to give the defendant’s requests eight and nine was not erroneous. On the face of the note, a line appears to have been drawn through the figures “ $5,000.00 ” in the upper left-hand corner, and “ $2,000.00 ” written directly above. A material alteration of a note without the assent of all the parties liable thereon renders it void. G. L. c. 107, § 147. Under § 148 of the same chapter it is provided in part that “ Any alteration which changes ... 2. The sum payable, either for principal or interest ... or any other change or addition which alters — 191 — the effect of the instrument in any respect, is a material alteration.” The words “ Five Thousand Dollars ” written on the face of the note remained unchanged. Upon the back of the note three payments of $1,000 each were credited on account of principal. It is manifest that the drawing of a line through the figures “ $5,000.00 ” and inserting above them “ $2,000.00 ” did not amount to a material alteration. It is also contended that, although the note does not provide for interest, it has been materially altered by stamping on its face “ Rate 6%.” It appears that opposite “ Rate 6% ” is also stamped “ June 1.” It amounts only to a statement of the implication of law that, if the note was not paid at maturity, interest would be payable at six per cent after that date. It could not have been ruled as matter of law that the comment by counsel for the plaintiff in his argument, or that part of the judge’s charge relating to the failure of the defendant to produce witnesses, was erroneous. Daniels v. Daniels, 240 Mass. 380, 385, and. cases cited. The cases relied on by the defendant, including Fitzpatrick v. Boston Elevated Railway, 223 Mass. 475, Mikkelson v. Connolly, 229 Mass. 360, and London v. Bay State Street Railway, 231 Mass. 480, are distinguishable in their facts from those in the case at bar. A careful examination of the charge fails to show any reversible error. As we are unable to discover any error of law in the conduct of the trial, the entry must be Exceptions overruled.