Stevens v. Berkshire Street Railway Co. , 247 Mass. 399 ( 1924 )

Braley, J.

The judge was warranted on the record in finding that the plaintiff was the holder and owner of a first mortgage five per cent gold coupon bond for $1,000, payable to bearer, or if registered to the holder, issued by the defendant, and signed respectively by its president and treasurer, a copy of which is annexed to the declaration. G. L. c. 231, § 29. It was a negotiable instrument. Dexter v. Phillips, 121 Mass. 178, 183. Pratt v. Higginson, 230 Mass. 256, 258, 259.

Neither a presentment of the bond to the trust company named in the instrument — which held as trustee a first mortgage on all the property, privileges and franchises of the defendant to secure bondholders, and at whose office and place of business it was made payable — nor demand for payment was necessary before bringing suit. The defendant is the primary and only promisor, and the action itself is a sufficient demand. G. L. c. 107, §§ 23, 93. Goodfellow v. Farnham, 239 Mass. 590, 591.

The bond has attached to it.a “ Trustee’s Certificate,” purporting to be signed by the trust company, stating that “ It is hereby certified that the within bond is one of the bonds specified in the within indenture of mortgage as secured thereby.” The bond having provided that it “is valid only when the Girard Trust Company has indorsed hereon a certificate that it is one of the bonds in the said indenture specified as thereby secured,” the defendant’s first contention is that the plaintiff cannot recover because he introduced no evidence of the genuineness of the signature of the trustee. But the answer is a general denial, and, the defendant having made no specific denial of the genuineness of the signature of the trust company, with a demand that it should be proved at the trial, this defence is not open. G. L. c. 231, § 29. Lowell v. Bickford, 201 Mass. 543. Whiddon v. Sprague, 203 Mass. 526. Dean v. Vice, 234 Mass. 13. Levison v. Lavalle, 243 Mass. 47.

The defendant’s final contention is that a street railway company organized under the laws of this Commonwealth could not at the date of the bond, June 2, 1902, mortgage its franchise or property and issue bonds thus secured without the approval of the board of railroad commissioners as provided in R. L. c. 109, § 24, and that the plaintiff having failed to introduce any evidence that, the defendant had obtained the approval of the board, the judge should have ruled as requested, that the action could not be maintained. The bond which the plaintiff bought was issued and sold by the defendant, and the proceeds were received under the terms of the mortgage. A contract is presumed to be legal until the contrary is shown, and the affirmative defence of its illegality is unavailable unless pleaded in the answer, which has not been done in the present case. Granger v. Ilsley, 2 Gray, 521. Suit v. Woodhall, 116 Mass. 547, 549. Whittingslow v. Thomas, 237 Mass. 103, 105.

We find no error of law in the rulings at the trial and the exceptions must be overruled.

So ordered.