National Bank v. Cambridge Salvage Supply Co.

Pierce, J. This is an action of contract brought by the plaintiff, as indorsee, against the defendant, as acceptor, of three bills of exchange in the form of trade acceptances. At the trial “It was not disputed that the defendant accepted the three trade acceptances.” The exceptions relate to the exclusion of certain evidence offered by the defendant, to a part of the judge’s charge, and to the disposition by the judge of certain requests for rulings. All the evidence material to the issue raised by the refusal to receive evidence is contained in the bill of exceptions. The bill sets out only the part of the charge to which exception was taken. The jury found for the plaintiff. The acceptances were drawn on the defendant by the Albemarle Soapstone Corporation and were made payable to the drawer or order. After acceptance by the defendant, they were discounted by the plaintiff, which claims as a holder in due course. At the trial the defendant offered evidence of a conversation that took place at the time of the acceptance of the draft between Samuel Freedman, president of the defendant corporation, Albert P. Bolling, president of the Albemarle Soapstone Corporation and one [283] Minor, vice-president of the plaintiff, and thereby sought to prove that Bolling then told Minor that he was desirous of having the “Cambridge Salvage & Supply Co.” accept a trade acceptance in the sum of $1,500; that “Freedman had refused to give him this unless he had the assurance and guaranty of the bank that if the merchandise for which a trade acceptance was given was not shipped, he would not be required by the plaintiff bank to pay the trade acceptance;” that Minor then asked Bolling if he would promise him to ship the goods before the trade acceptance became due, and that Bolling replied that he would; that Minor then turned to Freedman and said: “If Mr. Bolling promises us that he will ship the goods, you may sign this trade acceptance, and if he does not, you will not be required to pay”; that thereupon Freedman signed the acceptance and said: “I am signing this with the understanding that you are to discount it, and if the merchandise is not shipped, I will not be required to pay it”; and that Minor assented thereto. The evidence as to the conversation which Freedman alleged he had with Minor was excluded by the judge and the defendant excepted. The evidence was excluded rightly. It was not offered to prove that the acceptances were delivered conditionally. There is nothing in the offer of proof which would warrant a finding that the bills of exchange were not to be operative and negotiable contracts until the delivery of the goods for which the drafts were drawn. Indeed, the declaration of Freedman to the vice-president, Minor, “I am signing this with the understanding that you are to discount it, and if the merchandise is not shipped, I will not be required to pay it,” is conclusive that Freedman knew that the plaintiff intended to discount the drafts and thus acquire the right further to negotiate them. Watkins v. Bowers, 119 Mass. 383. Hill v. Hall, 191 Mass. 253, 265. The proffered testimony was inadmissible to prove that the defendant’s obligation, which in law arose at the time of the acceptance of the. drafts, ceased at the time the drafts were payable if at that time the merchandise for which the trade acceptance was given was not shipped. The exclu [284] sion of the evidence followed the rule that a party to a negotiable instrument which is payable absolutely cannot show by paroi that the obligation was in fact conditional. Torpey v. Tebo, 184 Mass. 307. Zielmann v. Copelof, 232 Mass. 393. Liberty Trust Co. v. Price, 259 Mass. 596, 602. There was nothing in the offer of proof which tended to show that the plaintiff was not a holder in due course within the meaning of G. L. c. 107, § 75, cl. 4. None of the exceptions of the defendant to the exclusion of evidence is specifically or inferentially argued in the defendant’s brief, other than such of them as are above considered. The requests for rulings were refused except so far as given in the charge. The burden is upon the defendant to show prejudicial error. Crane Co. v. Pension, 224 Mass. 135. Farnum v. Ramsey, 231 Mass. 286. The charge, except as to a single “excerpt,” is not set out in the bill of exceptions. Without knowledge of the* context of the charge, we assume that the requests for rulings in substance were given in so far as they were correct propositions of law applicable to the facts which the jury could find under the instructions of the judge. The request that upon the evidence the jury must find for the defendant was denied rightly. Patton v. DeViney, 259 Mass. 100. Bray v. Hickman, 263 Mass. 409. We find no error in the part of the charge which is printed in the bill of exceptions as an “excerpt.” Exceptions overruled.