Finkelstein v. Sneierson

• Decision Date: 03 December 1930
• Parties: FINKELSTEIN v. SNEIERSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

273 Mass. 424

173 N.E. 703

FINKELSTEIN

v.SNEIERSON.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 3, 1930.

Exceptions from Superior Court, Suffolk County; Patrick M. Keating, Judge.

Action by Bessie Finkelstein, administratrix, against Samuel L. Sneierson. After verdict for plaintiff, the trial judge entered verdict for defendant, in accordance with leave reserved, and plaintiff brings exceptions.

Exceptions sustained, and judgment for plaintiff on the verdict.

Wendell P. Murray and Alexander D. Diamond, both of Boston, for plaintiff.

William M. Blatt, of Boston, for defendant.

CROSBY, J.

The declaration alleges that the defendant on or about November 28, 1919, executed and delivered to the plaintiff a certain agreement under seal by the terms of which the defendant agreed to pay to the plaintiff the sum of $2,250 in installments, as therein set forth; and that the defendant has wholly neglected and refused to pay said sum or any part thereof. The answer pleads a general denial, payment, absence of consideration and the statute of limitations.

The agreement upon which the action is brought reads as follows: ‘Know all men by these presents that whereas there is now pending in the Superior Court for the County of Suffolk, an action wherein Max Finkelstein is the plaintiff, and Samuel L. Sneierson et al. are the defendants, which action is numbered 93824 on the docket of said Court, and whereas the parties to said litigation have agreed to settle and adjust the same now be it agreed that the said defendant Samuel L. Sneierson in said action agrees to pay to the said plaintiff Max Finkelstein, the sum of $2250, payable $100 on the twenty-eighth day of November, 1919, and $100 each and every month thereafter with interest, until the aforesaid sum is paid together with six per cent interest on the principal sum remaining due, until the date of said payment. The said Max Finkelstein agrees to continue from time to time upon the docket of said Court, the said action until the last payment hereinbefore provided for has been made, whereupon the said Max Finkelstein, his heirs, successors and assigns agree to and with the said Sneierson, that entry shall be made in said action, judgment for the plaintiff in the sum of $2250 without costs, and that further entry made, judgment satisfied. That upon said last payment the said Finkelstein, his heirs, successors and assigns will make and execute to the said Samuel L. Sneierson and all other endorsers upon the notes in suit, a full release of all claims and demands. Provided however, that if said Sneierson shall fail to make said monthly payments of $100 with interest, then the said Finkelstein shall have the right to immediate judgment for the full amount of the notes sued on in said action, with all costs and interest, less any amounts which shall have been paid on account thereof as provided in this agreement. In witness whereof the said parties hereunto set their hands and seals this 28th day of November A. D. 1919.

‘[Signed] Samuel L. Sneierson [Seal]

‘[Signed] Max Finkelstein [Seal].’

At the trial in the superior court before a judge and jury the plaintiff testified that she was the administratrix of the estate of her husband, Max Finkelstein, and that she had often talked with him respecting the notes executed by the defendant. The plaintiff also produced as a witness a daughter of the intestate who testified that ‘her father had stated about six years ago that he would buy or build a house when the Sneierson matter was settled.’

The defendant testified that he made payments in accordance with the terms of the agreement, occasionally making payments in amounts larger than the sum due monthly; that all payments were made by checks, the final one for $200 being delivered in December, 1921, and on this occasion Finkelstein gave him a receipt in full; that the last six payments were made by his brother under a power of attorney authorizing him to sign checks in the name of the defendant; that all of his checks and the receipt were kept by him in a wooden box on his desk at his place of business, and were destroyed by fire in April, 1928. The defendant's brother testified to the same effect in regard to the last six payments and to the giving of the receipt by Finkelstein in December, 1921.

The case was submitted to the jury solely upon the question of payment, the judge reserving leave to enter a verdict for the defendant if upon the questions raised, and the evidence introduced, such a verdict ought to be entered. A verdict was returned for the plaintiff for the amount set forth in the declaration, with interest; the judge, thereafter, entered a verdict for the defendant in accordance with the leave reserved. The case is before us on the plaintiff's exceptions.

The action is brought, not upon the notes executed by the defendant, but...