Lincoln v. Finkelstein

• Decision Date: 28 May 1926
• Citation: 255 Mass. 486,152 N.E. 332
• Parties: LINCOLN v. FINKELSTEIN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

255 Mass. 486

152 N.E. 332

LINCOLN

v.FINKELSTEIN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 28, 1926.

Exceptions from Superior Court, Suffolk County; G. A. Flynn, Judge.

Action of contract by Emma J. Lincoln against Solomon Finkelstein and another to recover on mortgage note assigned to plaintiff. Verdict for plaintiff, and defendants except. Exceptions overruled.Curtin, Poole, Allen & Cooch, of Boston, for plaintiff.

E. M. Shanley, of Boston, for defendants.

WAIT, J.

The note in suit was made by the defendants in May of 1907, and was originally secured by a mortgage of real estate. It became due in 1912, and in March of 1915 was assigned to the plaintiff by the payee, her brother. A foreclosure sale of the mortgaged property made in 1917 did not realize enough to satisfy it. The writ is dated July 26, 1917.

The makers parted with their equity of redemption in the real estate before the maturity of the note. There was no evidence to show whether in this conveyance their grantee assumed and agreed to pay the note. They defended upon the ground that, without their knowledge or consent, the holder of the note afterward extended the mortgage, or agreed with the then owner of the equity to delay foreclosure.

After a verdict for the plaintiff, they contend that there was error in the exclusion of evidence, in the refusal to direct a verdict in their favor, in the denial of certain requests for instructions, and in parts of the charge to the jury.

[1] There was no error in excluding testimony in regard to the price paid by the defendants for the property in 1907, and to its value at the maturity of the note in 1912. No claim was made of any fraud, and there was no offer of evidence of negligence in the sale. The evidence was immaterial to any issue in the trial.

[2] There was no error in the refusal to direct a verdict for the defendants. The plaintiff produced the note and proved its execution. The defenses presented were affirmative. The burden of proving them was on the defendants. The evidence was conflicting. Obviously no verdict could be directed. Eddy v. Johnston, 250 Mass. 299, 301, 145 N. E. 426.

There was evidence which, if believed would justify findingsthat the original payee in 1912 received a bonus of $100 from the owner of the equity to extend the mortgage for three years, and again, after the three years, obtained another $100 as a bonus from a new owner of the premises on an agreement to extend the mortgage for three years if, in addition, the owner paid $250 of the principal. The plaintiff testified that she received $250 on the principal in 1915 and 1916. These receipts were indorsed on the note in her handwriting. She testified that they were transmitted to her by her brother and that she supposed they were made by the defendants. The note was in the hands of the brother until his death in 1921., and until that time he transacted all business for her in regard to it. She testified that ‘he acted as her agent in relation to the question of payments and extensions of the mortgage and everything else’; that he foreclosed the mortgage in her name. A son of the defendants, a lawyer, testified that in 1917 the brother sent for him, and said interest was unpaid, and that he had not communicated with the defendants before since they sold the property, because interest was being paid promptly.

At the close of the evidence the defendants presented six requests for instructions to the jury. They cannot complain of the disposition made of them. The judge instructed the jury that if, in fact, an extension was granted by one with authority to grant it the defendants were discharged of liability. Knowledge by the defendants was thus immaterial, and the first request may be disregarded. The second and third requests were given in substance. The fourth, fifth and sixth requests were immaterial upon the issues presented by the pleadings and at the trial, so fas as the bill of exceptions discloses.

[5] The requests for instructions presented orally at the conclusion of the charge were presented too late. Rule 44, Superior Court, 1923. No good exception lies to the refusal to give them.

The defendants also claimed exceptions to the instructions actually given in regard to the authority of ‘an agent to bind his principal in matter of extension.’ It is open to serious question whether this exception called the attention of the judge to the subject-matter of the contention which has been addressed to us. The instructions actually given cover with sufficient fullness and accuracy the matter of general authority of an agent, and of ratification by a principal who is ignorant of the facts of the agent's action but who accepts and acts upon the result. From this point of view there was no reversible error.

[6] Whether the charge was equally unassailable from a different point of view remains to consider. The judge instructed the jury:

‘As matter of law, it does not appear that she [the plaintiff] gave her brother as her agent authority to extend this mortgage, or do anything which would prohibit her from foreclosing it if it was overdue if she so desired, and therefore you are to disregard and treat as of no consequence any testimony as to what Mr. Lincoln [the payee] agreed after March 25, 1915, because at that time he was only an agent, and he did not have the right to bind his principal by...