CITY BANK & TRUST COMPANY vs. HAROLD SIAGEL; BENJAMIN WHITE, individually and as trustee, third-party defendant.

CITY BANK & TRUST COMPANY vs. HAROLD SIAGEL; BENJAMIN WHITE, individually and as trustee, third-party defendant.

1 Mass. App. Ct. 804

February 5, 1973

This action was commenced by City Bank & Trust Company (the bank) against Siagel to recover the unpaid balance of a note indorsed by Siagel, who pleaded a subsequent discharge in bankruptcy and impleaded White (both individually and as a trustee) on separate theories (a) that White was a prior indorser on the note (G. L. c. 106, Section 3-414) and (b) that Siagel had indorsed the note for the accommodation of White (G. L. c. 106, Section 3-415[3], second sentence, and [5]). The trial judge found for the bank on its claim against Siagel and against Siagel on his claim against White. Siagel's sole exception is to the denial of his motion for a new trial on the grounds that the findings were against the law and the weight of the evidence. White, but not the bank, was listed as a creditor on Siagel's bankruptcy schedules. As Siagel was bound by his admission

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under G. L. c. 231, Section 69, that he did not notify the bank of the bankruptcy proceedings, and as there was no evidence that the bank received notice or knowledge of such proceedings from any other source, the judge was free under 11 U. S. C. Section 35 (a) (3) (1964) to find that the bank's claim against Siagel was not barred by the discharge in bankruptcy. The judge was also free to find on conflicting evidence, including at least two documents signed by Siagel, that Siagel had agreed to indemnify White against liability on the note and thus had not indorsed the note as an accommodation to White. That Siagel's liability to White under the documents of indemnity may have been discharged by the bankruptcy did not prevent White from using the documents to contradict Siagel's testimony that he had indorsed the note as an accommodation to White. There was no error in the course of the trial.

Exceptions overruled.