Charlestown Five Cents Sav. Bnak v. Kalemian

• Decision Date: 02 March 1938
• Parties: CHARLESTOWN FIVE CENTS SAV. BANK v. KALEMIAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

299 Mass. 599

13 N.E.2d 404

CHARLESTOWN FIVE CENTS SAV. BANK

v.KALEMIAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1938.

Suit in equity in superior court by the Charlestown Five Cents Savings Bank against Eliza A. Melkon Kalemian and another to establish the named defendant's indebtedness upon a guaranty of a mortgage note and to reach a fund alleged to belong to defendant but standing in another's name. From a final decree dismissing the bill, plaintiff appeals.

Affirmed.Appeal from Superior Court, Suffolk County; Brogna, Judge.

H. Cohen, of Boston, for plaintiff.

J. W. Vaughan and S. M. Kalemian, both of Boston, for defendants.

QUA, Justice.

This is a bill to establish the indebtedness of the defendant Kalemian, hereinafter called the defendant, to the plaintiff upon a guaranty of a mortgage note and to reach and apply in payment a fund alleged to belong to the defendant but standing in the name of another.

The evidence is not reported. It is elementary that without the evidence we cannot overturn findings of fact made by the trial judge, except where it appears from the record itself that they were not derived directly from the unreported evidence, but that they were pure inferences from other facts stated, or where they are in contemplation of law inconsistent with other facts stated or with the pleadings. Jones v. Clark, 272 Mass. 146, 148, 149, 172 N.E. 250;Plumer v. Houghton & Dutton Co., 277 Mass. 209, 215, 178 N.E. 716. Our method of dealing with the case is necessarily governed by this principle.

Pertinent facts found are these: The mortgage and note were originally given to the bank by a former owner of the property from whom the defendant acquired title without assuming the mortgage. The bank wrote the defendant, requesting quarterly payments on the principal. In consequence the defendant called at the bank and asked that the bank give her a written extension of the mortgage and a reduction of interest. A few days later the bank wrote to the defendant that it ‘was willing to waive reduction of the principal at the present time, if [the defendant] * * * personally guaranteed the mortgage note.’ Ten days later the bank again wrote the defendant, asking her to call and guarantee the loan. More than a month after that the defendant ‘called’ and signed the guaranty. ‘The bank never executed a waiver of the reduction of the principal nor did it otherwise bind itself to waive reductions of the principal;...