Parker v. Kellogg , 158 Mass. 90 ( 1893 )

Field, C. J.

The letters of the defendant to the plaintiff admitted in evidence are almost unintelligible when taken in connection with the meagre statement of facts contained in the bill of exceptions. One of the letters is dated on the day when the last three notes declared on were made payable, and the other letter is dated on the day when the first note was made payable. As days of grace are to be allowed on all the notes, the letters were apparently written before any one of the notes was actually payable; but the letters indicate that the defendant had some knowledge of the business of Hart, the maker of the notes, and was giving attention to his means of paying them, and that the defendant meant to see to it that Hart paid them, if he had the means. They were admitted on the cross-examination of the defendant, and had perhaps some tendency to contradict his testimony. We certainly cannot say, on the statement of the case contained in the exceptions, that it appears that the court erred in admitting the letters, or in the instructions given to the jury with reference to the effect of the letters upon the conduct of the plaintiff, “ in connection with other facts known to him and appearing in the evidence,” which evidence is not set out in the exceptions.

The first note was made payable on October 2, 1885, and, allowing days of grace, was actually payable on October 5th. The last three notes, called the “ smaller notes,” were made payable on October 1, 1885, and allowing days of grace, were actually payable on October 3, October 4th being Sunday. Pub. Sts. c. 77, §§ 8, 9. The exceptions recite that “ the plaintiff and his clerk, one Hogg, both testified that they demanded payment of the three smaller notes of said Hart at the office of said defendant on the third day of October, between eleven and one o’clock in the morning, and of the $1,000 note on the fifth day of October, at said defendant’s office, between ten and one o’clock; and that the notes were produced on both occasions, and shown to Hart and the defendant, who were both present, and payment demanded of Hart by the plaintiff; and that, after Hart had said he was unable to pay them, the plaintiff and Hogg both turned to the defendant, and said that Hart would not pay the notes, and they must look to the defendant. . . . Said defendant and Hart both testified that no demand was made upon Hart by either said Parker or said Hogg at the time and place aforesaid, or at any other time.” There was evidence that Hart had no place of business of his own, but that he was in the habit of going to the defendant’s office, and of using a desk there. The defendant testified “ that no notice was given him of the non-payment of the notes by said Parker or Hogg at any time, and that his first knowledge of the non-payment of said notes was about the middle of October, when he heard from Hart that said notes had not been paid.” The only evideuce, therefore, of due demand and notice was the testimony of the plaintiff and Hogg as to what took place at the defendant’s office.. In this state of the evidence, the court instructed the jury that, if they “ found that demand on Hart was made at Kellogg’s office at the hours aforesaid, as testified to by the plaintiff and Hogg, such demand would be sufficient, and that no demand at Hart’s residence was necessary.” Whether the defendant’s office was Hart’s place of business or not, if the plaintiff made a demand upon Hart personally at this office during business hours of the last day of grace, and produced the notes, and Hart said that he was unable to pay them, and made no objection to the place of the demand, this would be a sufficient demand, and to this effect were the instructions given by the court. King v. Crowell, 61 Maine, 244. 1 Dan. Neg. Inst. (4th ed.) § 638. Exceptions overruled.