Bailey v. Danforth

[506] The opinion of the court was delivered by Ross, J. The question submitted to the County Court by the referee is, whether the indorsement upon the note can legally be considered as evidence tending to show part payment upon the note, though not of itself sufficient evidence of such payment. If it can be legally considered as having such tendency, he finds the bar of the Statute of Limitations removed, and that the plaintiff is entitled to recover; but if it cannot be legally considered as having such tendency, he finds that the defendant is entitled to recover. The statute, Gen. Sts. c. 63, s. 27, is in substance that no indoi’sement or memorandum of a payment written or made upon a promissory note, unless in the handwriting of the party making the payment, shall be deemed sufficient proof of the payment to take the note out of the operation of the statute of limitations. The language used implies that such indorsement may be weighed in determining whether such payment has been made on the note, though of itself not sufficient to establish the payment. This we think is the construction to be placed upon the statute. It is intended thereby to cut off the establishment of the payment from the indorsement alone, unless proved’ to be made, in the handwriting of the party making the payment. Other evidence must be before the trier tending to establish such payment, to enable him to find the fact that such a payment had been made. It is apparent that the weight to be given to such an indorsement would depend very much upon the circumstances surrounding the transaction, such as whether made in due course of business, before or after the statute had run. If the maker of the note should deny the making of the claimed payment under oath, and the holder of the note should swear to the making of the payment, and that he immediately made the indorsement, and the payment and indorsement were at a time when it would be against the interest of the holder of the note, because long before the statute had run upon the note, it might be entitled to very considerable weight in determining which party was right. If, on the other hand, the claimed payment and indorsement were after the statute had run on the note, and so made when for the interest of the holder of the note, the indorsement would be entitled to less [507] weight; and under peculiar circumstances perhaps to no weight at all. The weight to be given to the fact of indorsement must, in each case, be left to the determination of the trier, as well as how much other evidence in connection with it is required to establish the payment, and so operate to remove the apparent statute bar. In this case it was not shown in whose handwriting the indorsement was, but being made before the statute had run upon the note, and so against the interest of the holder, it was not to be wholly disregarded and rejected by the referee for that reason alone. The referee has not disclosed what other evidence was before him to aid in establishment of the payment claimed to be evidenced in part by the indorsement. We are to presume it was sufficient, in connection with the indorsement, to justify his finding. This is the sole question on which the referee made his decision of the case to turn. What he otherwise reported as to an offer at one time to pay the note, and the question attempted to be raised thereon, it is immaterial to consider. The judgment of the County Court is affirmed.