Practice, Civil. Bills and Notes. Contract, Consideration. If a party who has taken many exceptions at a trial submits his case to this court on a brief those exceptions not argued in his brief will be treated as waived, although he states in his brief that he relies on all the objections set forth in his exceptions.
A defendant sued on a promissory note cannot show, in the absence of fraud, that he did not know the contents of the note when he signed it and thought that another person was the payee.
The holder of a promissory note can maintain an action on it without showing any beneficial interest.
A promise to end proceedings, in which a defendant has been arrested on an execution under R.L.c. 168, § 1, cl. 3, on the ground that he is an attorney at law and that the debt was for money collected by him for the plaintiff which he unreasonably neglected to pay to the plaintiff, is a good consideration for a promissory note signed by the defendant as maker and by another as surety, and the consideration is good against the surety as well as against the maker.
Under R.L.c. 173, § 48, the refusal of a presiding judge to allow a defendant to amend his answer is a matter of discretion, and, if the judge thinks that the purpose of an amendment is vexation and delay and not to enable the defendant to make a legal defence, it is proper for him to deny the motion to amend.
LORING, J.
[After the foregoing statement of the case.] The defendants in their brief state that they rely upon all objections set forth in the exceptions. None, therefore, are waived. We do not think it necessary, however, to notice those not argued.
The law presumes, in the absence of fraud, that the defendants read the note signed by them. Grace v. Adams, 100 Mass. 505.
The holder of a promissory note who has no beneficial interest in it can maintain an action on it. National Pemberton Bank v. Porter, 125 Mass. 333. Haskell v. Avery, 181 Mass. 106.
There was evidence of a consideration for the original note in the promise to end the proceedings in the police court if the note was given. It further appears, if material, that this promise has been kept; no further proceedings in the police court were ever taken. If the defendants had wished to have those proceedings dismissed of record, they could have had that done.
Holt, the surety, is liable if he gave the note in consideration of the promise to end the proceedings in the police court. If authority were needed for this it may be found in the case relied on by the defendants, Sumner v. Williams, 8 Mass. 162.
The amendment of the answer was a matter entirely within the discretion of the Superior Court. R.L.c. 173, § 48. Richmond Iron Works v. Woodruff, 8 Gray, 447. Smith v. Whiting, 100 Mass. 122. If the presiding judge was satisfied that the purpose of the amendment was vexation and delay and not the setting up of what was honestly thought to be a defence, it was proper to refuse the defendants' motion.
Exceptions overruled.