Tourtellotte v. Saulnier

Sanderson, J. This is an action of contract on a promissory note dated April 16,1923, for $1,300, payable in monthly instalments of $25. each, secured by a mortgage of personal property duly recorded. The note was made to the order of the defendant Saulnier and was indorsed by her. It also purported to be signed by her and by one Hickey as makers. In the copy of the note, made part of the record, a seal appears to be opposite the name of Hickey. In the only count of the declaration as originally filed, the plaintiff sought to hold Hickey as maker and Saulnier as indorser. Later, by amendment, a count was added seeking recovery against Hickey and Saulnier as makers. Both counts are stated to be for the same cause of action. The defendant Saulnier in her answer denied that due notice of protest had been given her, and set up the defence that her name was placed on the face of the note after its delivery to the plaintiff. The jury found for the plaintiff, and before the verdict was recorded stated, in answer to a question by the judge, that they found Saulnier’s name was placed on the note at the time of its purchase. Saulnier alone has filed a bill of exceptions. No argument has been addressed to us that Saulnier’s liability is affected by the seal on the instrument, and we treat any defence which might have been urged on that ground as waived. ' The testimony tended to prove that the plaintiff purchased the note from Saulnier, paying her therefor a substantial sum of money. If it be assumed that the rights of the partiés on the first count are to be determined upon the principles applicable to a negotiable promissory note, the evidence was insufficient to justify a verdict against Saulnier charging her as indorser.. Upon the evidence the notice required to hold an indorser had not been given. G. L. c. 107, §§ 119, 120, 127. Hall v. Crane, 213 Mass. 326, 327. [364] The defendant filed a general motion for the direction of a verdict in her favor. This was properly denied if there was evidence for the consideration of the jury on either count. No motion was made for a directed verdict on each count. See Gates v. Boston & Maine Railroad, 255 Mass. 297. In Pizer v. Hunt, 253 Mass. 321, 330, the court,said: “Where there are several counts in a declaration for the same cause of action, some of which are good and some bad, and a general finding or verdict is returned, judgment will not be arrested but the finding or verdict may be applied to the good counts only.” West v. Platt, 127 Mass. 367, 371. Commercial Wharf Corp. v. Boston, 208 Mass. 482, 487. Saulnier, having become a party to the note as maker when it was purchased by the plaintiff, would be liable in that capacity notwithstanding the fact that she was also an indorser. See G. L. c. 107, § 39, cl. 7. No error appears in the ruling excluding, in the cross-examination of the plaintiff, the inquiry why he did not in the beginning sue Saulnier as maker instead of as indorser. The plaintiff’s reasons for not including the second count as a part of the original declaration were immaterial to any issue being tried. The exclusion of the question relating to the property mortgaged to secure the note accompanied by an offer to show that the plaintiff had not attempted to realize on the security presents no reversible error. A person holding a note secured by mortgage is not obliged to attempt to convert the security into money before suing the maker of the note. Miller v. Levitt, 226 Mass. 330, 331. The defendant sought to introduce a receipt purporting to be signed by one Benfield stating that “Mrs. Theresa Saulnier has paid her mortgage to me this day and I have discharged the same.” The purpose of the evidence was to prove that when Saulnier conveyed the mortgaged property to Hickey it was fre.e from encumbrances. The plaintiff had already testified that he had learned that Benfield at some time held a mortgage on the property, but that he had been told that it had been discharged. There was nothing in his testimony that the defendant was called upon to meet. The receipt was not competent evidence to prove that the [365] property was unencumbered and the inquiry itself related to an irrelevant fact. The absence of such encumbrance could not affect the defendants’ liability as makers. Exceptions overruled.