Mezoff v. Carvotta

• Decision Date: 19 January 1976
• Citation: 4 Mass.App.Ct. 768,340 N.E.2d 527
• Parties: Albert R. MEZOFF v. Angelo CARVOTTA et al.
• Court: Appeals Court of Massachusetts

Page 527

340 N.E.2d 527

4 Mass.App.Ct. 768

Albert R. MEZOFF

v. Angelo CARVOTTA et al.

Appeals Court of Massachusetts, Suffolk.

Argued Dec. 9, 1975.

Decided Jan. 19, 1976.

Henry A. Tempone, Medford, for defendants.

Before HALE, C.J., and ROSE and GRANT, JJ.

RESCRIPT.

The judge properly excluded evidence of a purported set-off which the defendants sought to introduce at the trial held in January, 1974. The assignor's obligation for goods sold and delivered ran only to one of the defendants, New England Air Conditioning Distributors, and could not be asserted as a set-off in an action against the four defendants as comakers of the promissory note in question. G.L. c. 232, § 3, as in effect prior to St.1975, c. 377, § 111. Evidence that the transaction by which the plaintiff acquired his interest in the note was a fraudulent conveyance was also properly excluded. As the answer in set-off was filed after the adjudication in bankruptcy of the plaintiff's assignor, the conveyance could only be voided by the trustee in bankruptcy, not by a creditor. Thomas E. Hogan, Inc. v. Berman, 310 Mass. 259, 261, 37 N.E.2d 742 (1941). The defendants' further contention that the trial judge improperly instructed the jury on the effect of the findings of a Municipal Court (G.L. c. 231, § 102C) was waived at oral argument.

Judgments to be entered on the verdicts.