Mulcahy v. Fenwick

• Decision Date: 28 March 1894
• Citation: 36 N.E. 689,161 Mass. 164
• Parties: MULCAHY et al. v. FENWICK et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

161 Mass. 164

36 N.E. 689

MULCAHY et al. v. FENWICK et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 28, 1894

At the hearing in the superior court, Richardson J., found the following facts: "In or about the year 1885 the plaintiff Mrs. Mulcahy became the owner, in her own right, of a parcel of land, with the buildings thereon situated in the city of Chelsea. Her husband, Daniel Mulcahy transacted all the business relating to the said estate for her; she signing all deeds and documents, whenever it was necessary (not being able to read or write), by making her mark. About December 1, 1888, when the plaintiffs were erecting a house on said land, one Eben Hutchinson, an attorney at law, and judge of the police court of Chelsea went upon said premises, and asked Mr. Mulcahy if he desired to borrow some money. Mr. Mulcahy replied that he might want some money in a few days. Shortly after, Mulcahy called at Hutchinson's office, in Chelsea; and the result of the interview between Mulcahy and Hutchinson was that Hutchinson agreed to loan the plaintiffs $1,100 in money, and also to assume and pay a mortgage of $1,700 held by Messrs. Slade & Griffin upon said estate of the plaintiffs, and Mulcahy agreed that the plaintiffs would give Hutchinson a note for the $2,800 secured by a mortgage on said estate. In pursuance of this agreement, on or near the 7th day of December, 1888 the said Hutchinson loaned the plaintiffs, in cash, the sum of $1,100, paying the same in several sums at different times, the first sum being paid on December 7, 1888, and later the said Hutchinson paid and discharged the said Slade & Griffin mortgage, of $1,700; and on the 7th day of December, 1888, the plaintiffs signed a note for $2,800, and executed a mortgage upon the aforesaid land in Chelsea for a like sum, as security for said note, and gave the note and mortgage to said Hutchinson. Said note and mortgage were made to run from the plaintiffs to one Henry Hunt Letteney. Said Henry Hunt Letteney executed an assignment of said mortgage and note on December 8, 1888, to Joseph B. Fenwick, one of the defendants. The terms and conditions upon which the money was loaned were fixed by said Hutchinson and Mulcahy, and without the knowledge of said Fenwick, excepting that said Fenwick had asked said Hutchinson to get a mortgage of $2,800 for him, and had been told by said Hutchinson that he had a mortgage, or would get one for him. The note and mortgage deed were drawn by said Hutchinson, or one of his clerks at his office, and were executed by the plaintiffs at his office, and left there with Hutchinson; and the mortgage was taken to the Suffolk registry of deeds by said Hutchinson and recorded on December 8, 1888, and the assignment was taken to said registry by said Hutchinson and recorded on December 13, 1888. Said mortgage and assignment were taken from the registry by said Hutchinson about ten days after each had been left there to be recorded, and the mortgage and assignment, together with the note and an insurance policy, were delivered by said Hutchinson to Fenwick at Fenwick's house, in Chelsea. The sum of $2,800 was given by said Fenwick to said Hutchinson at about that time. Eleven hundred dollars, which was the money part of the consideration, was paid to said Mulcahy by said Hutchinson, in three different sums, at different times; the first sum being paid on December 7, 1888, at Hutchinson's office. Since the delivery of said mortgage, note, assignment, and policy to said Fenwick by said Hutchinson, as aforesaid, the same have ever since remained in the possession of the said Fenwick, either at his house or in his safe-deposit vault; and neither of said papers, since they were delivered by said Hutchinson to said Fenwick, have ever been in the possession of said Hutchinson, but have remained exclusively in the possession of said Fenwick. Hutchinson was the only party the plaintiffs believed to have any interest in the note. The plaintiffs never had any talk with said Letteney until after the said Hutchinson had absconded, and the plaintiffs never had any conversation with said Fenwick until about July, 1892, when said Fenwick, for the first time, stated to them that he held a mortgage upon their said premises. Said Mulcahy paid to Hutchinson the interest on said note of $2,800 from time to time, and also the principal sum in installments, and received therefor receipts, copies of which are hereto attached, marked 'A,' 'B,' 'C,' 'D,' 'E,' 'F,' and 'G,' the signatures to the said receipts being in the handwriting of said Eben Hutchinson; there being included in one or two of said receipts interest on a further loan of $100, made in January, 1889, by said Hutchinson to the plaintiffs, which loan the plaintiffs afterwards paid to said Hutchinson in full; the said $100 loan, however, being in no way connected with the said note and mortgage for $2,800. At the times when Mulcahy made said payments to Hutchinson, he saw Hutchinson have a note with the figures '$2,800' in the left-hand corner, and his signature at the bottom; and said Hutchinson appeared to write on the back of the note, sometimes saying to Mulcahy: 'You don't need a receipt. This indorsement will answer.' Said Fenwick received from said Hutchinson the sums of money indorsed on the back of the said $2,800 note held by Fenwick, and received no more money from any source on account of said note. The indorsements on the the back of this note held by Fenwick are all in his handwriting. These indorsements of interest were made by said Fenwick on or about the dates when the various sums of interest were paid to him by said Hutchinson. If the statements of said Hutchinson to Fenwick are admissible in evidence, it is shown and admitted that he stated to said Fenwick, at the time that he made the first payment of interest, that he (Hutchinson) was having other money transactions with said Mulcahy, that said...