Levin v. Wall

• Decision Date: 30 April 1935
• Parties: LEVIN v. WALL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

290 Mass. 423

195 N.E. 790

LEVIN v. WALL et al.

Supreme Judicial Court of Massachusetts, Suffolk.

April 30, 1935

Action of contract in the Municipal Court of the City of Boston by David Levin against George C. Wall and another. There was a finding for plaintiff in the sum of $153 and interest, and the case was reported, and, from an order of the Appellate Division dismissing the report, named defendant appeals.

Affirmed.

Appeal from Municipal Court of Boston, Appellate Division.

W. D Donaghy, of Boston, for appellant.

S Miller, of Boston, for appellee.

DONAHUE, Justice.

This case was tried in the municipal court of the city of Boston on an ‘ agreed statement of facts' the substance of which is here set forth. The plaintiff's declaration is based on the last four of a series of eleven promissory notes totalling $455 given by the defendant to the plaintiff in consideration of a loan of $305. The four notes were due at the time the action was begun. The defendant after the return day of the writ, that is, on the day of the trial, made a tender to the plaintiff of the balance due on the principal sum borrowed with interest at the rate of eighteen per cent. per annum from the time the money was borrowed, and the sum of $5 for the expenses of making and securing the loan together with such costs as the plaintiff might recover in his action, the total sum thus offered being $65. The plaintiff refused to accept it and a similar tender again made on the same day at the trial was again refused.

At the close of the trial the defendant filed the following requests for rulings: ‘ (1) The tender referred to in General Laws, chapter 140, section 90, may be made after the return day of an action brought by the lender to recover from the borrower the balance claimed due on the loan. (2) The defendant * * * has made such a tender as complies with General Laws, chapter 140, section 90, together with such costs as the plaintiff is entitled to recover in this action. (3) On all the facts the plaintiff is not entitled to recover in this action including for damages and costs judgment for a greater amount than that of such tender.’ The trial judge denied these requests for rulings and found for the plaintiff on his declaration. At the request of the defendant he then reported the case on his refusal to grant the defendant's requests for rulings to the Appellate Division where an order was entered dismissing the report.

The statute on which the defendant relies (G. L. c. 140, § 90) in its form at the time of the loan, and at the time of the trial, provided: ‘ A loan of less than one thousand dollars shall be discharged upon payment or tender by the debtor of the principal sum actually borrowed, with interest at the rate of eighteen per cent. per annum from the time said money was borrowed, and a sum not exceeding five dollars for the actual expenses of making and securing the loan; but the lender shall be entitled to interest for six months at said rate if the debt is paid before the expiration of that period. All payments in excess of said rate shall be applied to the discharge of the principal, and the borrower shall be obliged to pay or tender only the balance of the principal and interest, at said rate, due after such application. * * *’ St. 1934, c. 179, § 1, which made important changes in G. L. c. 140, § 90, passed after the trial of the present case, cannot here be applied.

The defendant contends that the statute, G. L. c. 140, § 90, should be construed as meaning that his offers, on the day of the trial, of the amount of the debt computed according to the statutory formula either discharged the debt entirely or had the same effect as if made at the time the debt became due and that in no event should judgment have been entered for an amount in excess of the amount he offered. Manifestly, as the defendant says, the statute was passed for the benefit of borrowers of sums less than $1,000. That benefit may however be waived by such a debtor. Spofford v. State Loan Co., 208 Mass. 84, 94 N.E. 287. The statute did not make a higher rate of interest than eighteen per cent. illegal and a debtor, who has paid on such a loan a sum in excess of an amount calculated according to the statute, cannot recover it back from the lender. Reed v. Boston Loan Co., 160 Mass. 237, 35 N.E. 677. What the statute does is to give to a debtor the privilege of paying a less amount of interest, than he may by the terms of the contract have agreed to pay, provided he chooses to avail himself of that privilege in the manner provided by the statute. Shawmut Commercial Paper Co. v. Brigham, 211 Mass. 72, 97 N.E. 636.

We are of the opinion that on the construction which must be given to the statute an offer of the defendant to pay his debt made as late as the day of the trial, could not be found to be an effective tender. The word ‘ tender’ in its legal sense when applied to an offer to pay an amount due on a contract for the payment of money has long been used with particular and characteristic significance in various respects, including a limitation on the time within which such an offer may be made. The word had, at the time...