Stoyell v. Stoyell , 82 Me. 332 ( 1890 )

Peters, C. J.

The defendant is sued on his promissory note for one hundred and fifty-five dollars given to the plaintiff, his brother. The defense is that he signed the paper as a receipt and not as a note, receiving from his brother, as executor of their mother’s estate, one hundred dollars at the time of signing, — and no more at any time.

If the' defendant received one hundred dollars in money and knowingly gave a note therefor, he cannot set up that the note was understood to be in effect a receipt, or a substitute for a receipt, so as on that ground to wholly avoid the note. That would be the verbal contradiction of his written contract. Shaw v. Shaw, 50 Maine, 94.

But the defendant states the transaction more favorably to himself than that. He swears that the money was paid to him as a portion of a legacy due to him from his brother as executor of his mother’s estate, and that the brother induced him to sign the note by falsely pretending that it was a receipt, instead of a note, and that he did not read the paper at the time. If this statement be true it is a defense on the ground of fraud, and is permissible between the original parties to the note.

His testimony is opposed bjr the existence of the note itself, a strong presumption of validity always attaching to such an instrument as against mere oral evidence, especially when, as in this case, the defendant is an intelligent person and possesses at least a knowledge of common business transactions. But in the defendant’s favor it may be said that his testimony does not appear to have been weakened by the cross-examination, and that no request was made for continuance or delay to obtain the deposition of the plaintiff, who was not present to testify. Though we have entertained doubt what our determination should be, on the motion to set aside a verdict which nullifies the note, the conclusion is to allow the verdict to stand.

Motion overruled.

Walton, Virgin, Emery, Foster and Haskell, JJ'., concurred.