Bancroft Trust Co. v. Corey

• Decision Date: 31 October 1935
• Citation: 198 N.E. 156,292 Mass. 280
• Parties: BANCROFT TRUST CO. v. COREY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

292 Mass. 280

198 N.E. 156

BANCROFT TRUST CO. v. COREY et al.

Supreme Judicial Court of Massachusetts, Worcester.

October 31, 1935

Action of contract by the Bancroft Trust Company against Thomas F Corey and another. From an order of the Appellate Division dismissing a report by Hartwell, Judge, who found for the plaintiff in the sum of $4,810.44, defendants appeal.

Order dismissing report affirmed.

Appeal from Appellate Division of District Court, Western District Hartwell, Judge.

W. A Garrity, of Worcester, for appellants Thomas F. and Emma E Corey.

David Goldstein and Jacob Asher, both of Worcester, for appellee.

PIERCE, Justice.

This is an appeal from an order, ‘ Report dismissed; no prejudicial error found,’ of the Appellate Division for the Western District. The appellants are the defendants in an action of contract brought on their joint and several promissory note by the plaintiff, a banking corporation in possession of the commissioner of banks, in liquidation under G. L. (Ter. Ed.) c. 167 (section 22 et seq.). The trial judge made a finding for the plaintiff for $4,810.44. This is a finding for the sum of $4,000 principal and interest up to the date of the finding. In their brief the defendants state that ‘ At the trial the Defendants admitted their execution of the note’ and that ‘ Their defenses were Payment and Accord and Satisfaction.’ They ‘ admit the evidence was not sufficient to sustain their burden of proof on their answer of Accord and Satisfaction’ and ‘ They rely upon their plea of Payment, as set up in their answer and specifically referred to in their Request for Rulings of Law.’ The defendants state the question presented to be ‘ Was there evidence introduced at the trial upon which the Trial Court was required to find payment in whole or in part of the Defendants' note?’ and we shall consider the quoted question as presenting the sole issue.

Succinctly stated the facts are as follows: In May, 1925, the Bancroft Trust Company lent Thomas F. Corey and his wife $5,000, and they gave the note declared on in the plaintiff's declaration and executed a mortgage deed to the plaintiff as security for the loan on property owned by the defendant Thomas Corey at 76 Lake Avenue, Worcester. On February 17, 1926, they paid $1,000 on the principal of said note. The back of the note bore the following words and figures: ‘ Payments on Account of Principal Date Feb. 17, 1926 Amount $1000 Balance Due $4000.’ On January 1, 1932, the defendants defaulted in payment of the quarterly interest on their note.

There was evidence that the mortgagee on December 7, 1932, made an open, peaceable and unopposed entry on the premises described in said mortgage for the purpose of foreclosing the mortgage for breach of conditions thereof; that this declaration of purpose was duly received; that after due and sufficient legal notice the mortgagee on January 7, 1933, sold the premises described in said mortgage to the Bancroft Trust Company for $100; that just before the foreclosure sale the value of the mortgaged property was between $4,000 and $5,000; that the defendants occupied the premises until they received notice to leave from the plaintiff, and...