Baker v. Gavitt

• Decision Date: 13 January 1880
• Citation: 128 Mass. 93
• Parties: Albert Baker v. Milton Gavitt
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

128 Mass. 93

Albert Baker v. Milton Gavitt

Supreme Court of Massachusetts

January 13, 1880

Argued September 9, 1879

Berkshire. Action on the Gen. Sts. c. 137, § 5, to recover possession of a parcel of land in North Adams alleged to be held by the defendant unlawfully and against the right of the plaintiff. Writ dated September 10, 1878. The answer averred that the defendant was in possession as a tenant of Betsey Kimball, and not as a tenant of the plaintiff; that Betsey Kimball was mortgagee of the premises lawfully in possession for condition broken at the time of a lease of the same by her to the defendant. At the trial in the Superior Court, on appeal, before Brigham, C. J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, the substance of which appears in the opinion.

Exceptions overruled.

F. P Brown, for the defendant.

M. Wilcox, (A. Potter with him,) for the plaintiff.

Colt J. Endicott & Lord, JJ., absent.

OPINION

Colt, J.

The premises, which were leased by the plaintiff to the defendant, had been subject to a mortgage made by E. J. Carey to Mrs. Betsey Kimball, which the plaintiff, when he became owner of the equity of redemption, assumed and agreed to pay. Mrs. Kimball made peaceable entry under the statute to foreclose this mortgage, and the defendant, after the entry, paid rent to her and refused to pay it to the plaintiff; the relation of landlord and tenant was thereupon terminated by a notice to quit given by the plaintiff.

At the trial, the plaintiff, claiming that the mortgage had been paid before the entry, produced the note and also the mortgage, upon which was indorsed an acknowledgment of satisfaction, and a discharge, not under seal, signed by Mrs. Kimball, and dated before her entry was made. The question at issue was whether the note had been actually paid, and the discharge fairly obtained by the plaintiff.

The plaintiff, who lived in the State of New York, testified that he sent a draft to one Davenport, to pay the balance due on the note, and have the mortgage discharged. Davenport testified that he duly received the draft and deposited it in a bank to his own credit. He was then, under the defendant's objection, allowed to state that he asked Carey, the maker of the note and mortgage, where Mrs. Kimball was, and told him that the plaintiff had sent the money to pay the mortgage, and that it was then in the bank in his name. The defendant still insists on his objection; but the answer to it is, that this evidence was not offered to prove the fact that money had been sent to the witness as stated. That fact had been fully proved by his own testimony, and by the testimony of the plaintiff, and was not in dispute. It was offered only to show what communication took place between Davenport and Mrs. Kimball, through Carey, as to the payment and discharge of the mortgage; to show what it was that Davenport requested the latter to say, and which Carey himself testified he afterwards communicated to Mrs. Kimball, as requested. The evidence was made competent by the fact that what was said by Davenport was communicated to Mrs. Kimball. The order of proof in the admission of such evidence is in the discretion of the court. Ray v. Smith, 9 Gray 141.

Under the instructions given, the jury must have found either that Mrs. Kimball actually received the money sent by the plaintiff to pay the mortgage, or that, upon the offer of the money to her without condition or restriction, she chose to treat it as in effect paid into her hands, and thereupon gave up the note and discharged the mortgage. They must have further found that the arrangement made with Carey and Davenport, by which she received their notes for the money thus paid or offered to be paid by the plaintiff, was in effect an independent loan from her to them; and that the plaintiff was in no way privy to any false or...