Koltin v. Brown

• Decision Date: 18 April 1919
• Citation: 123 N.E. 92,233 Mass. 16
• Parties: KOLTIN v. BROWN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

233 Mass. 16

123 N.E. 92

KOLTIN

v.BROWN.

Supreme Judicial Court of Massachusetts, Suffolk.

April 18, 1919.

Appeal from Municipal Court of Boston, Appellate Division; Michael J. Creed, Judge.

Action by Julius A. Koltin against George H. Brown, resulting in finding for defendant. The case was reported to the appellate division of the municipal court of the city of Boston, which ordered judgment to be entered for plaintiff, and defendant appeals. Order of the appellate division reversed, and judgment ordered entered for defendant.

W. R. Scarritt, Jr., of Boston, for appellant.

H. C. Dunbar, of Boston, for appellee.

CROSBY, J.

This is an action on a promissory note made by the defendant and delivered to one Rubenstein, who transferred it to the plaintiff after maturity. The defense is want of consideration.

The history of the transaction between the parties so far as material to the determination of the issue involved is as follows:

On March 21, 1915, a corporation known as the Dinsmore Power Process Company borrowed $590 from Rubenstein and gave to him its promissory note for that amount payable to his order in two months. The note was indorsed by the defendant and also by one Mintz. This note was renewed five times and a new note was given upon each renewal for the balance then due; the interest on the new note was paid in advance by the maker at the rate of 3 per cent. a month, and the old note was delivered up to the maker for cancellation. On all the notes above referred to the defendnat and Mintz were indorsers.

On March 6, 1916, a note was given to Rubenstein for the amount then due. The defendant Brown was the maker of this note, but it was not indorsed by Mintz nor was the Dinsmore Power Process Company a party to it. There were five renewals of this note so given by the defendant of which the one in suit is the last. At the time of each of these renewals the old note was delivered up and a new note given for the amount them due. Payments were made from time to time upon the principal of the loan, and at the time of each renewal the interest on the new note was paid in advance. The entire amount of the interest payments upon the twelve notes so given amounted to $286.80; and the entire amount of the payments on account of principal amounted to $440. It was agreed before the trial judge that--

‘the sum of the respective interest payments (except the last payment of $9 on the note in suit, which it is contended by the plaintiff is within the statutory minimum) in excess of 18 per cent. per annum upon the amount and for the period for which each interest payment was made is sufficient if it should be applied to the note in suit to fully pay the same.’

As it is admitted by the plaintiff that the total payments made upon the loan by all the different parties liable on the notes were in excess of the amount required by R. L. c. 102, § 51, to discharge the loan, it is the contention of the defendant that the loan was fully discharged before the note in question was given and that it was without consideration; and having been...