McCarthy v. Simon

• Decision Date: 29 February 1924
• Citation: 247 Mass. 514,142 N.E. 806
• Parties: McCARTHY v. SIMON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

247 Mass. 514

142 N.E. 806

McCARTHY

v.SIMON.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 29, 1924.

Exceptions from Superior Court, Suffolk County; M. Morton, Judge.

Action on a negotiable mortgage by Pauline F. McCarthy against Isaac Simon. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

W. Hirsh, of Boston, for plaintiff.

E. Greenhood, of Boston, for defendant.

RUGG, C. J.

This is an action of contract to recover the balance due on a negotiable promissory note dated August 17, 1912, for $15,000, payable in two years from date to a third person, and indorsed to the plaintiff. One defense is the statute of limitations. So far as here material, indorsements on the notes were:

‘$375-interest on Within note paid to July 8, 1914. $1,744.50-paid on principal on within note. $331.40-interest on within note to January 5, 1915.’

None of these were in the handwriting of the defendant. Conceded facts at the trial were that on July 8 or 9, 1914, a payment by the defendant was made on the principal of the note, the amount of which was in dispute. The sum of $375 due as interest for the six months then last past was paid by the defendant at or about the same time, this being shown by the indorsement. Confessedly the note was outlawed in the hands of the plaintiff, an indorsee, unless a payment was made thereon by the defendant within six years before the date of the writ, which was December 24, 1920. The defendant testified on this point that early in July, 1914, he met the plaintiff and her father, that he wanted a partial release of the mortgage securing the note, that the plaintiff's father insisted upon payment of 25 cents per foot on the land to be released and of six months' interest in advance to January 5, 1915, as a condition of giving the release. His further testimony was:

‘Thereupon, I agreed to pay 25 cents and the interest in advance and went out saying I would be back shortly with the money for both release and interest. In an hour I returned with a little over $2,900, sufficient to pay for the release, but I told them I could not raise the money for the advance interest. I gave them my word I would pay it within a week, and they took my word. I paid them in two $1,000 bills, one $500 bill, four $100 bills and the rest in small stuff. Within a week I paid plaintiff's father the six months' interest in advance, a little over $300. That was the last money and time I ever paid on that note.’

The plaintiff's father testified that no such transactions as were testified to by the defendant occurred except that he, being at that time the record holder, signed a partial release of the mortgage securing the note. The plaintiff testified that she received on July 8 or 9, 1914, $375 as interest, and $1,744 for the release, and that the indorsements of those payments on the note were in her handwriting. The husband of the plaintiff testified:

‘I received the last payment on this note. The last indorsement is in my handwriting. I don't remeber where I received it, but I received it somewhere from the defendant.’

There was conflict upon other incidental matters between the testimony of the defendant and that of the plaintiff and of her father.

The burden of proof was on the plaintiff to show both a cause of action and the suing out of process within the period of limitations, that is, within six years prior to December 24, 1920. Pond v. Gibson, 5 Allen, 19, 81 Am. Dec. 724;Slocum v. Riley, 145 Mass. 370, 14 N. E. 174;Currier v. Studley, 159 Mass. 17, 20, 33 N. E. 709. The indorsements on the back of the note were not sufficient proof standing alone to take the note out of the statute of limitations. None of them were made by or in the presence of the defendant. G. L. c. 260, § 14.

The testimony of the defendant might have been disbelieved except so far as it constituted admissions against himself. Lindenbaum v. New York, New Haven & Hartford Railroad, 197 Mass. 314, 84 N. E. 129;Commonwealth v. Russ, 282 Mass. 58, 70,122 N. E. 176. Disregarding the testimony of the defendant, so far as favorable to himself, the remaining facts, which might have been found, were that interest amounting to $331.40 was paid by the defendant on the note, that this amount of interest was due in January, 1915, and that this was the amount of interest on the balance due on the note according to the testimony of the plaintiff and other witnesses and was a larger amount than was due according to the testimony of the defendant. While there is no categorical evidence to the effect that the last installment of interest actually was paid on the note within six years before the date of the plaintiff's writ, yet it might have been regarded as common knowledge that interest on mortgage notes is not usually paid in advance or before it is due, and that hence this payment of interest confessedly made by the defendant in some amount within six months after July 8, 1914, was not made until or about its due date, that is to say, January, 1915, which would be within six years prior to the suing out of the writ. The instructions to the jury on this point were not open to objection. The verdict of the jury shows that the inference was drawn that the payment of interest was not made very long, if at all, before it was due. It cannot be pronounced unwarranted by the evidence and the inference reasonably to be drawn therefrom.

The defendant in his answer ‘set up payment and also specially averred that ‘plaintiff agreed with defendant to await his recovery’ from his illness and financial difficulties ‘and not to press him in regard to interest or principal on said mortgage, and not to exercise the power of sale contained therein’; that, ‘without giving notice to the defendant that she repudiated said agreement or was going to ignore the same, plaintiff subsequently advertised the mortgaged premises for sale under such power of sale and sold the mortgaged...