Parker v. Roberts

Braley, J.

The payee, to whose order the promissory note in suit was made payable, having indorsed it in blank before maturity, the plaintiff’s possession of the note which he produced at the trial would be sufficient evidence of title on which to maintain the action if no further indorsements written on the instrument itself or upon a paper attached thereto appeared. G. L. c. 107, §§ 31, 54. Way v. Richardson, 3 Gray, 412 . Jump v. Leon, 192 Mass. 511 . Massachusetts National Bank v. Snow, 187 Mass. 159, 162 . Leavitt v. Wintman, 234 Mass. 248 . Bovarnick v. Davis, 235 Mass. 195 . But the record states that the payee transferred the note “for value ... to a bank in Illinois,” and the immediate indorsement on the back of the note is, “Pay the Corn Exchange Natl Bank Chicago, 111. or order First National Bank 70-768 Milford, 111. 70-768 G. F. Patterson, Cashier.” The indorsement directly following, “Pay to the order of any bank or banker all prior indorsements guaranteed, The Corn Exchange National Bank 2-5 of Chicago, 111.,” and signed by its cashier, is stamped “cancelled,” across the stamp. It did not appear in what manner the plaintiff became the holder, even if the payee deposed “that the plaintiff was the legal holder of the note at the time suit was brought,” and on the face of the note and the indorsements title apparently remained in the Corn Exchange National Bank. G. L. c. 107, §§ 53, 54. Folger v. Chase, 18 Pick. 63 , 67.

“The court found for the plaintiff on the declaration,” which alleges the making and tenor of the note, and that the payee “indorsed the said note in blank,” and “.the plaintiff is the holder thereof.” By R. L. c. 73, § 65 (see now G. L. c. 107, § 71), “The holder may strike out any indorsement which is not necessary to his title. The indorser whose indorsement is struck out and all indorsers subsequent to him are thereby relieved from liability on the instrument.” The right of the plaintiff to omit tracing his title in the declaration through all subsequent indorsers, and to allege that he is the holder under the previous blank indorsement is conferred by the statute. Leavitt v. Wintman, 234 Mass. 248, 250 . Jerman v. Edwards, 29 App. Cas. (D. C.) 535. The note *177 therefore would be transferable by delivery and in effect a note payable to bearer. The presumption of title as well as the presumption of value not having been rebutted were sufficient to enable him to maintain the action. Pettee v. Prout, 3 Gray, 502 . Andrews v. Lyons, 11 Allen, 349 , 350. Massachusetts National Bank v. Snow, 187 Mass. 159, 162, 163 . Merchants National Bank v. Marden, Orth & Hastings Co. 234 Mass. 161, 168 . G. L. c. 107, §§ 31, cl. 5, 71, 82. The plaintiff’s fourth request, that the bearer of a note indorsed in blank is presumed to be a holder in due course, was properly given. And the question of consideration as between the defendant and the payee being of no consequence the plaintiff’s first and second requests accurately stated the law. Holden v. Phœnix Rattan Co. 168 Mass. 570 . National Bank of Newbury v. Wentworth, 218 Mass. 30 . Goodfellow v. Farnham, 236 Mass. 453, 454 . Bovarnick v. Davis, 235 Mass. 195, 198 .

The defendant’s requests were rightly denied for reasons sufficiently stated, and the giving of the plaintiff’s third request that the "payee of the note ... is legally entitled to remuneration for services as attorney, if such services are performed, notwithstanding the fact that he is not a member of the bar of Massachusetts, if he is a member of the bar of another State,” although inapplicable, was harmless error. See Brooks v. American Association of Masters, Mates & Pilots, 233 Mass. 168 .

The order of the Appellate Division dismissing the report is Affirmed.