Carlson v. Lawrence H. Oppenheim Co.
| Decision Date | 23 July 1956 |
| Citation | 136 N.E.2d 205,334 Mass. 462 |
| Parties | Clarence W. CARLSON et al. v. LAWRENCE H. OPPENHEIM CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Mario Misci, Boston, submitted a brief for plaintiff.
Sydney Berkman, Boston (Joseph Kruger, Boston, with him), for defendant.
Before QUA, C. J., and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.
This is a bill by two mortgagors for an accounting of the amount due under a mortgage to the defendant, the establishment of their right to redeem, and an injunction against a threatened foreclosure sale. A preliminary injunction was issued on September 1, 1955, enjoining the sale 'pending final determination of this suit.' A judge of the Superior Court found the material facts to be as follows. On or about November 19, 1951, the plaintiffs, who are husband and wife, gave to the defendant their joint promissory note for $3,000 bearing interest at the rate of twenty-four per cent and secured by a mortgage on real estate of the wife at 79 Ocean Street, Quincy. The mortgage provided that it was to secure 'the payment of any and all indebtedness past, present and future to the said mortgagee of said Clarence W. Carlson and/or Lillian J. Carlson and/or Clarence W. Carlson, Inc., a Massachusetts corporation.' Thereafter Carlson, on some ten occasions, borrowed money from the defendant on notes signed by him but not by his wife. He made payments on his indebtedness from time to time without instructions as to their application and the defendant applied the payments on the notes given subsequent to the mortgage. In 1952 payments of principal and interest due on the mortgage were in default and the defendant advertised a foreclosure sale on April 22, 1953. The sale was continued about fifteen times at the request of the 'plaintiff' who made payments on account which were applied in the manner above stated. The last adjournment of the sale was to August 29, 1955, and on the refusal of the defendant to postpone it further this suit was commenced. The judge ruled that, 'in the absence of directions from the debtor,' the defendant had a 'right to apply payments on any note owed by the * * * [plaintiffs] or either of them' and found that as of June 1, 1955, there was due under the mortgage $8,256.39 plus any expenses and interest accrued since that date.
A final decree entered on November 17, 1955, established the indebtedness of the plaintiffs 'upon the mortgage' in the sum of $8,486.96 and ordered that upon payment by the plaintiffs of that sum, with interest and accrued costs, within sixty days the defendant should discharge the mortgage. The decree further provided that if the plaintiffs failed to make such payment 'upon application to the court and notice to the said plaintiffs, a supplemental decree shall be entered dismissing the plaintiffs' bill, with costs to the defendant.' The plaintiffs filed a claim of appeal from the decree on November 22, 1955.
On January 18, 1956, the defendant notified Carlson that it intended to conduct the foreclosure sale on January 20 and on that date proceeded to hold the sale. Carlson filed a petition for contempt on January 23 alleging that the sale was in violation of the injunction issued on September 1, 1955. After a hearing at which it was agreed that the petitioner had made no payment to the defendant within sixty days after the final decree was entered, the defendant was adjudged guilty of contempt, disposition of the same being continued until the plaintiffs' appeal from the final decree should be decided by this court. The defendant appealed from the order on contempt and its appeal as well as the plaintiffs' appeal from the final decree is now before us.
We see no merit in the plaintiffs' appeal. The evidence is not reported and the finding of the judge as to the amounts due on the mortgage must said stand. It is well established that a creditor holding security for several loans may, in the absence of agreement, apply payments on account in such manner as will be most...
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