Farber v. Sackett

Cabboll, J. This is an action by one claiming to be the holder in due course against the maker of a promissory note dated October 10, 1923, and payable November 15, 1923, to the order of Joseph E. Greene, Inc. The plaintiff alleged in his declaration that he became the holder of the note before its maturity; that “said note was duly presented for payment on November 15, 1923, and said note was duly protested for non-payment.” At the trial the plaintiff put the note in evidence, as well as the notary’s certificate of protest, and certain interrogatories propounded to the defendant, in which the defendant admitted the execution of the note and stated that he paid the note by check to Joseph E. Greene, Inc. on November 23, 1923. The defendant’s answer was a general denial and payment. The notary’s certificate sets forth the demand, the refusal of payment at the trust company where the note was payable, and notice to the indorsers of the maker’s default by written notice, including as one of the indorsers “Simon Farman.” The name of the plaintiff, Simon W. Farber, does not appear in the notary’s certificate. From an order by the Appellate Division of the District Court, dismissing a report by the trial 'judge, who found for the plaintiff, the defendant appealed. The holder of a negotiable promissory note is deemed prima facie to be the holder in due course. G. L. c. 107, § 82. Having the note in his possession and producing it at the trial, therefore, was some evidence that the plaintiff held it in due course, “free from any defect of title of prior parties.” G. L. c. 107, § 80. Having the title to the note the plaintiff was entitled to prevail unless the evidence in his favor was overcome. See Parker v. Roberts, 243 Mass. 174, 176. The defendant contends that, because the certificate of the notary does not disclose the plaintiff’s name, and shows Simon Farman to be the indorser, it could not be found that — 571 — the plaintiff was a holder 'in due course. The notary’s certificate did not deprive the plaintiff of his rights under the note. The defendant’s liability as maker did not depend on the accuracy of the certificate. This liability was not conditional, G. L. c. 107, § 83, and the plaintiff’s right to recover is not affected by the statements of the notary. It could have been found that the note bore the indorsement of Simon W. Farber and that this indorsement was upon the note when it was protested for nonpayment. The plaintiff, therefore, could recover. The provision of § 13 of G. L. c. 107, that the protest of a notary is prima facie evidence of the facts stated in the protest and of the giving of notice to the drawer or indorser, did not require the trial judge to find that the plaintiff was not a holder in due course, and there is nothing in Manufacturers National Bank v. Simons, 245 Mass. 325, 329, and Aradalou v. New York, New Haven & Hartford Railroad, 225 Mass. 235, contrary to what is here decided. Order dismissing report affirmed.