Carter v. Goff , 141 Mass. 123 ( 1886 )

C. Allen, J.

The point on which the defendant relied was, that Haldeman was acting as the agent of the plaintiff in procuring the defendant’s name upon the note for the plaintiff’s accommodation. There was no evidence to show such agency. The plaintiff was seeking to collect his debts, in money or in notes which he could use. But there was nothing to show that he was seeking to obtain anybody’s name upon paper for his own accommodation, or that his relations with the defendant were such as to make it probable that he would seek such accommodation from the defendant. The mere fact that he had had one of the defendant’s notes before does not raise any such inference. So far as appears, this may have been received from Haldeman in payment of a debt. Where the whole evidence goes to negative a fact relied on, and there is no ground for anything more than a mere surmise of the existence of such fact, it is proper to instruct the jury that there is no evidence legally sufficient to establish the issue. Chase v. Breed, 5 Gray, 440. Fay v. Alliance Ins. Co. 16 Gray, 455, 461. Denny v. Williams, 5 Allen, 1. Commonwealth v. Fitchburg Railroad, 10 Allen, 189. Brightman v. Eddy, 97 Mass. 478, 481.

Exceptions overruled.