Corrigan v. Payne
| Decision Date | 29 December 1942 |
| Citation | 312 Mass. 589,45 N.E.2d 829 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | ERNEST J. CORRIGAN v. ANN B. PAYNE & another. |
November 5, 1942.
Present: FIELD, C.
J., DONAHUE, QUA & RONAN, JJ.
Accord and Satisfaction.
An accord whereby the maker of a second mortgage note in arrears was to vacate the premises and convey them to the mortgagee upon his demand was not satisfied by the mortgagee's taking possession in his own behalf and thereafter treating the property as his own until the first mortgage was foreclosed, without demanding or receiving a deed of the premises, and the accord was not a bar to an action on the note.
CONTRACT. Writ in the Third District Court of Eastern Middlesex dated February 3, 1937.
The action was heard by Green, J. L. K. Nathanson, for the plaintiff.
R. C. Evarts, for the defendant.
This is an action of contract against the makers of a promissory note for $4,000, dated May 1, 1930, payable in three years, and secured by a second mortgage of real estate in Belmont. Payments on the note were in arrears in June, 1932, and the male defendant offered to vacate the mortgaged premises and to convey them to the plaintiff on his demand. The plaintiff accepted this offer, took possession of the premises collected the rents, and paid the expenses incurred by the maintenance of the property, until the foreclosure of the first mortgage in 1936. There was evidence that these expenses exceeded the receipts. The plaintiff took possession not as agent of the defendants but solely in his own interest, and thereafter treated the property as his own. He never requested a deed although the male defendant was ready and willing to execute and deliver a deed. We have stated the subsidiary findings of the trial judge, who made a general finding for the defendants and also an alternative finding for the plaintiff in the sum of $4,611.50. The plaintiff appealed from an order of the Appellate Division dismissing the report.
The answer contained a general denial and an allegation of payment; and averred that the note was secured by a second mortgage on a certain parcel of real estate, and that
The agreement made in June, 1932, was independent of and separate from the written promise of the defendants, evidenced by their note to pay the plaintiff a certain amount of money, and under an allegation of payment the defendants could not show the execution and performance of such subsequent agreement. Grinnell v. Spink, 128 Mass. 25 . Ulsch v. Muller, 143 Mass. 379 . Hunt v. Brown, 146 Mass. 253. There was error in denying the plaintiff's fifth request, that the defendants had not sustained the burden of proving that the note had been paid. We do not, however, rest our opinion on this ground as we prefer to deal with the principal defence, that the liability of the defendants has been discharged by an accord and satisfaction.
We assume in favor of the defendants that the accord could be found to have been supported by a valid consideration. Gilson v. Nesson, 198 Mass. 598. Montuori v. Bailen, 290 Mass. 72 . But the mere making of the accord did not release the defendants and entitle them to a discharge of the mortgage and a surrender of the note. The accord remained executory until the plaintiff had taken possession and until the defendants had conveyed the premises to him. In other words, the accord itself was not a satisfaction of the plaintiff's claim. Dedham Lumber Co. v. Hartung, 278 Mass. 488. Rosenblatt v. Holstein Rubber Co. 281 Mass. 297 . Waitzkin v. Glazer, 283 Mass. 86 . Banionis v. Lake, 289 Mass. 146 . Sherman v. Sidman, 300 Mass. 102 . Zlotnick v. McNamara, 301 Mass. 224 . McFaden v. Nordblom, 307 Mass. 574 .
The judge found that the plaintiff took possession of the premises not as an agent of the defendants but solely "to protect his own interests, and treated it as his own from then on." The plaintiff did not record any certificate of entry, G. L. (Ter. Ed.) c. 244, Section 2, and he did not exercise the power of sale contained in the mortgage. There is nothing to show that the mortgage was not in the usual statutory form, G. L. (Ter. Ed.) c. 183, Section 18, and upon breach of its conditions the mortgagee was empowered to take possession. G. L. (Ter. Ed.) c. 183, Section 26. An entry by a mortgagee while the breach continued, even if ineffectual for the purpose of foreclosure under G. L. (Ter. Ed.) c. 244, Section 1, was valid for the purpose of collecting the rents and profits and the mortgagee would then become liable to account to the mortgagor. Stone v. Patterson, 19 Pick. 476. Welch v. Adams, 1 Met. 494. Shepard v. Richards, 2 Gray, 424. Cook v. Johnson, 121 Mass. 326. Lamson & Co. (Inc.) v. Abrams, 305 Mass. 238 . Davis v. Newburyport Five Cents Savings Bank, 311 Mass. 377 .
The general finding for the defendants included an implied finding that the defendants vacated the premises and the plaintiff entered into possession and that this constituted a part performance of the accord by the defendants. There was no full performance by the defendants as they never conveyed the premises to the plaintiff...
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