Bills and Notes, Consideration, Validity. Evidence, Competency. At the trial before a judge sitting without a jury of an action by the payee against an accommodation indorser of a negotiable promissory note, the defendant contended that the indorsement was illegal and void because it was procured by an abuse of criminal process and was given for the purpose of suppressing the prosecution of a crime. There was evidence tending to show that the plaintiff had given into the hands of a collection agency for collection a claim against a certain person for the amount of the purchase price of shoes, that on the advice of the attorney of the agency a complaint for larceny of the shoes was sworn out against the debtor, and that at the suggestion of the judge who was hearing the complaint that, if the debtor made restitution, he would nol pros the case, the debtor signed and the defendant indorsed the note in suit, and the plaintiff signed an acknowledgment of satisfaction, after which the court nol prossed the complaint. Held, that a finding for the plaintiff was warranted, since the judge might have found that the note was signed by the debtor, indorsed by the defendant and received by the plaintiff merely in settlement of a valid claim against the debtor and without any unlawful agreement having been made or unlawful pressure brought to bear by the plaintiff.
Evidence, offered at the trial of an action by the payee against an accommodation indorser of a negotiable promissory note, tending to show that the defendant was induced to indorse the note for the purpose of compounding a criminal prosecution then pending against the maker, in the absence of evidence tending to show that the plaintiff was responsible for such inducement, is immaterial as against the plaintiff and its exclusion does not harm the defendant.
SHELDON, J.
The defendants' argument in support of their requests for instructions rests upon the contention that it appeared at the trial that their indorsements were obtained and given for the suppression of the criminal prosecution which had been instituted against Holtz, and in consequence of the plaintiff's abuse of that criminal process. If the facts had been found to be as they contended, their contention would have been well founded. But the judge had a right upon the evidence to find, and it now must be taken that he did find, that Holtz gave the notes, the defendants respectively indorsed them, and the plaintiff received them, merely in settlement of his valid claim against Holtz and without any unlawful agreement having been made or unlawful pressure brought to bear by the plaintiff. Upon that finding, there was nothing in the transaction to prevent the plaintiff from recovering, and the instructions requested were rightly refused. Jennings v. Law, 199 Mass. 124.
The evidence offered and excluded was competent to show that the defendants made their indorsements in consequence of the unlawful inducements held out to them by Holtz; but it did not tend to show that the plaintiff was in any way responsible for those inducements. It could not have altered the finding of the plaintiff's innocence of any unlawful conduct. It was not material under what inducements the defendants acted unless the plaintiff was in some way responsible therefor. Hudson v. Miles, 185 Mass. 582, 586, 587. It follows that the defendants were not harmed by the exclusion of the evidence.
The exception taken by the defendant Shapiro as to the demand and notice was waived at the argument.
Exceptions overruled.