Whitney v. Clary , 145 Mass. 156 ( 1887 )

Morton, C. J.

The testimony of the witness Goodell, if believed, was sufficient to justify the jury in finding that the note in suit was duly signed by the defendant, and that it was attested by the witness, with the knowledge of the defendant, and as a part of the same transaction with the making of the note. Swazey v. Allen, 115 Mass. 594, and cases cited. The defendant contradicted this witness, but it was for the jury to decide which was entitled to credit.

The signature of the defendant and the delivery of the note having been proved, the note itself was prima facie evidence of consideration.

But in this case there was evidence which would justify the jury in finding that the note in suit was given to take up and cancel an old note signed by the defendant’s son and held by the plaintiff’s intestate. The surrender of this note, even if it could not be enforced at law, was a sufficient consideration for the new note. Wilton v. Eaton, 127 Mass. 174. The case before us is much stronger in favor of the plaintiff than was the case of Wilton v. Baton. In the case at bar, the defendant was the administrator and only heir of his son. He filed no bond as administrator, and nothing appears to show that his son’s note, at the time of its surrender, could not be enforced against his estate.

Exceptions overruled.