Practice, Civil, Amendment, Exceptions. Bills and Notes, Indorsement. Contract, In writing.
The denial in an action at law of a motion by the defendant to amend his answer is wholly within the discretionary power of the presiding judge and is not open to exception.
In an action by a holder in due course of a negotiable promissory note indorsed by the payee in blank, against such payee as indorser, it is no defense that "before and at the time of the indorsement, it was agreed, orally, that said indorsement was to be without recourse to him."
CROSBY, J.
1. The denial of the motion to amend the defendant's answer was wholly within the discretion of the presiding judge, and is not open to exception. Lang v. Bunker, 6 Allen, 61. Smith v. Whiting, 100 Mass. 122.
2. If the amendment had been allowed the evidence offered did not set up a legal defense to the note. When the defendant Sokolowitz, who will hereinafter be called the defendant, placed his signature upon the back of the note without qualification he became an indorser. R.L.c. 73, § 80. If the defendant's only intention was to indorse the note for the purpose of transferring title to the plaintiff, without incurring any personal liability, he could have accomplished that purpose by adding to his signature the words "without recourse," or any words of similar import. R.L.c. 73, § 55. Having indorsed the note without qualification he became liable to the plaintiff for the amount due thereon. Evidence of an oral agreement that at the time the defendant indorsed the note such indorsement was to be without recourse as to him was rightly excluded. Such evidence would tend to vary and control a written instrument absolute in its terms by parol, and was clearly incompetent. Wooley v. Cobb, 165 Mass. 503. Essex Co. v. Edmands, 12 Gray, 273, 279. Wright v. Morse, 9 Gray, 337, 339. Prescott Bank v. Caverly, 7 Gray, 217. This conclusion is not at variance with Lewis v. Monahan, 173 Mass. 122, and Shea v. Vahey, 215 Mass. 80, relied on by the defendant. There is no question that indorsers upon a note may make among themselves a valid agreement that the liability of either shall be different from that which the law otherwise would impose, but that principle has no application to this case.
Exceptions overruled.